     Case: 08-30485     Document: 00511029709          Page: 1    Date Filed: 02/18/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 18, 2010
                                     No. 08-30485
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

THERON DEMOINE BOSLEY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:03-CR-60031-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Theron Demoine Bosley, federal prisoner # 12064-035, appeals the denial
of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We
review the decision whether to grant or deny a § 3582(c)(2) motion for an abuse
of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
        Bosley argues that the district court abused its discretion by denying a
reduction based on the minor offenses in his prison disciplinary record and
without considering his later positive accomplishments. Post-sentencing conduct

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 08-30485

of the defendant that occurs after imposition of the original sentence may be
considered by the district court in determining whether a reduction should be
granted. See § 1B1.10, comment. (n.1(B)(iii)). Even in light of Bosley’s later
accomplishments, Bosley’s disciplinary record suggests an inability or
unwillingness to comply with prison rules and regulations. Therefore, Bosley
has not shown that the district court abused its discretion by denying relief on
this basis.
      Bosley argues that the district court erred by denying his motion without
giving him an opportunity to be heard. A defendant need not be present when
a “proceeding involves the correction or reduction of sentence under Rule 35 or
18 U.S.C. § 3582(c).” F ED. R. C RIM. P. 43(b)(4). He also argues that the district
court failed to indicate that it considered the factors set forth in § 3553(a) and
§ 1B1.10. Although a district court is required to consider these factors, it is not
required to provide reasons for its denial of a § 3582 motion or to explain its
consideration of the § 3553(a) factors. See Evans, 587 F.3d at 674. The record
reflects that the district court considered Bosley’s subsequent pleadings and
implicitly considered the § 3553(a) factors. See United States v. Whitebird, 55
F.3d 1007, 1010 (5th Cir. 1995).
      Bosley also argues that the district court erred by considering his criminal
history and his possession of a firearm, both of which he asserts were already
considered in the calculation of his original sentence. Bosley has not shown that
the district court abused its discretion as § 3553(a)(1) requires the district court
to consider “the nature and circumstances of offense and the history and
characteristics of defendant.”
      Finally, citing United States v. Jones, 489 F.3d 679 (5th Cir. 2007), Bosley
argues that the district court erred by considering his unadjudicated arrests.
The district court mentioned the arrests in passing, but it twice stated that
Bosley’s prison disciplinary record alone was sufficient to justify the denial of
relief and it also considered several other clearly permissible factors. As there

                                         2
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                                No. 08-30485

is no indication that the mere mention of Bosley’s unadjudicated prior arrests
had any bearing on the district court’s decision to deny relief, Bosley has not
shown that the district court abused its discretion.
      AFFIRMED.




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