     Case: 10-30029 Document: 00511301464 Page: 1 Date Filed: 11/22/2010




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

                                                 FILED
                                                                        November 22, 2010
                                     No. 10-30029
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

KEVIN M. FERGUSON, also known as Kevin Mercel Ferguson,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
            for the Western District of Louisiana, Shreveport Division
                           USDC No. 5:03-CR-50029-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Kevin M. Ferguson, federal prisoner # 11703-035, appeals the district
court’s order granting his motion under 18 U.S.C. § 3582(c)(2) for a reduction of
his sentence in light of the recent amendments to the crack cocaine guidelines.
Ferguson was sentenced originally to a 328-month term of imprisonment, in the
middle of the guidelines sentencing range. Ferguson contends that the district
court abused its discretion in reducing his sentence to a 293-month term of
imprisonment, at the top of the amended guidelines range.

       *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 10-30029

      Ferguson argues that the district court failed to consider his lack of a prior
criminal history, the remedial nature of the amendments to the crack cocaine
guidelines provision, the allegedly unjustified disparity between crack cocaine
and powder cocaine, and the fact that he has been in continuous custody for
more than seven years. He also complains that the district court did not give
reasons for its sentence.
      In United States v. Evans, 587 F.3d 667, 672-74 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010), this court held that a district court may
summarily grant or deny a § 3582(c)(2) motion without providing reasons. This
court rejected Evans’s contention that the district court had abused its discretion
in failing to reduce his sentence more, in light of his rehabilitative efforts in
prison. Id. at 673. The court reasoned that the district court, “which was under
no obligation to reduce Evans’s sentence at all, was under no obligation to reduce
it even further within the recalculated range.” Id. (footnote omitted). This court
found the district court’s conclusion “understandable” in light of Evans’s
extensive criminal history. Id. at 673 & n.11.
      Here, although the district court did not state why it chose a sentence at
the top of the amended guidelines range, its order denying reconsideration
indicates that it considered the entire record. The record demonstrates that the
district court was concerned with the seriousness of Ferguson’s offense. At the
sentencing hearing, the district court observed that Ferguson was a “significant
part” and “an organizer and/or leader” of the drug distribution enterprise.
Additionally, in rejecting Ferguson’s request to be sentenced at the lower end of
the guidelines range and imposing the 328-month sentence, the court specifically
stated that the sentence was selected after considering Ferguson’s personal
characteristics and lack of a criminal history and the extreme seriousness of the
offense in the movement of 578 grams of crack cocaine across state lines.
      On this record, Ferguson cannot show that the district court abused its
discretion in imposing a sentence at the top of the amended guidelines range.

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                                No. 10-30029

See Evans, 587 F.3d at 672. Similarly, to the extent Ferguson complains that
the district court failed to provide reasons “for granting his motion but not
providing a satisfactorily low enough sentence within the recalculated range,”
he has not shown an abuse of discretion. Id. at 674 (emphasis omitted).
      The district court’s order is AFFIRMED.




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