                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 12-1198
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                              LICURTIS G. WHITNEY,
                                            Appellant
                                 ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF DELAWARE
                       (D.C. Crim. No. 07-cr-00028-001)
                  District Judge: Honorable Leonard P. Stark
                                 ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 2, 2012
                                   ____________

              Before: SLOVITER, AMBRO and BARRY, Circuit Judges

                         (Opinion Filed: November 27, 2012 )
                                   ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

      Appellant Licurtis Whitney (“Whitney”) pled guilty to violating 21 U.S.C. § 841

(a)(1), (B)(1)(A) and § 846 and was sentenced to 75 months’ imprisonment and a

mandatory minimum term of 5 years of supervised release. Whitney appealed, and we
affirmed the judgment of sentence. On December 7, 2011, he filed a motion for

modification of sentence under 18 U.S.C. § 3582(c)(2) in light of the changes in the crack

cocaine guidelines. The District Court denied the motion, and Whitney again appeals.

We will affirm. 1

                                            I. Discussion

       Whitney’s sole argument before us is that the District Court denied his motion for

modification of sentence without holding an evidentiary hearing. It does not appear that

he requested an evidentiary hearing in the District Court, nor did he request that the

District Court reconsider its decision to deny his motion without one. Consequently, we

review for plain error. United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en

banc). On plain error review, Whitney must show that: “1) the District Court committed

an error; 2) the error was plain, i.e., it was clear under current law; and 3) the error

affected substantial rights, i.e., it affected the outcome of the proceedings.” United States

v. Watson, 482 F.3d 269, 274 (3d Cir. 2007). If those prerequisites are satisfied, we may

correct the error, but only if that error, uncorrected, would seriously affect “the fairness,

integrity or public reputation of judicial proceedings.” Vazquez, 271 F.3d at 99.

       The President signed the Fair Sentencing Act (“FSA”) of 2010 into law on August

3, 2010. Fair Sentencing Act of 2010, Pub. L. No. 111–220, § 2, 124 Stat. 2372, 2372

(2010). The FSA reduced the crack/powder ratio to approximately 18:1 and changed the


1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
                                            2
threshold quantities of crack cocaine necessary for mandatory minimum sentences under

21 U.S.C. § 841(b). Id. The Act also vested the Sentencing Commission with emergency

authority to promulgate guideline amendments in accordance with the FSA. Id. at § 8.

After it promulgated the appropriate emergency amendment, the Sentencing Commission

promulgated Amendment 750 which was made retroactive by Amendment 759. U.S.

Sentencing Guidelines Supp. App. C, amend. 750 (2011) (effective Nov. 1, 2011); U.S.

Sentencing Guidelines Supp. App. C, amend. 759 (2011) (effective Nov. 1, 2011) .

       In accordance with the FSA, Whitney sought a modification of sentence pursuant

to § 3582(c)(2), which provides, in relevant part:

       [I]n the case of a defendant who has been sentenced to a term of
       imprisonment based on a sentencing range that has subsequently been
       lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
       motion of the defendant . . . , the court may reduce the term of
       imprisonment, after considering the factors set forth in section 3553(a) to
       the extent that they are applicable, if such a reduction is consistent with
       applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Section 1B1.10 contains the aforementioned policy statements

and Application Note B lists factors for a district court to consider in rendering its

decision. The factor most pertinent to this appeal states that a district court “may consider

post-sentencing conduct of the defendant that occurred after imposition of the term of

imprisonment” in determining whether to reduce a sentence of imprisonment. U.S.

Sentencing Guidelines Manual § 1B1.10 cmt. n.1 (B)(iii) .

       Whitney does not argue that the District Court could not consider his post-


                                              3
sentencing conduct—possessing a cell phone, assaulting a prison officer, and refusing to

obey the orders of a prison officer—in denying his motion, but rather argues that

consideration of that conduct was premature because the District Court “never held an

evidentiary hearing to determine whether the allegations levied against the Appellant

were true.” Appellant’s Br. 14.

       Whitney was aware of the post-sentencing prison misconduct that served as the

factual basis for the District Court’s denial of his motion and referenced it in his motion

for modification of sentence. He did not, however, argue that he did not commit the

conduct at issue, noting only that “no charges are pending at this time” and that “any

alleged infraction Defendant may have had should have no bearing on the application of

the FSA as to his sentence.” App. 19.

       Whitney exclusively relies on United States v. Neal to support his argument that

the District Court committed error in denying his motion without a hearing. 611 F.3d

399, 400 (7th Cir. 2010). As here, in Neal the defendant had moved to reduce his

sentence in light of the amendments to the crack cocaine guidelines. The district court

denied the motion, stating that the sentence was necessary to promote the defendant’s

“respect for the law, to afford adequate deterrence to criminal conduct, and to protect the

public from further crimes.” Id. Two weeks later, the court amended its explanation for

the denial, adding that an additional basis for denying the motion was the fact that “prison

officials informed the Court” of defendant’s post-sentencing prison misconduct. Id. at


                                              4
400-01. The court did not hold an evidentiary hearing to consider this new evidence

before rendering its revised explanation.

       This appeal differs from Neal in several respects, two of which are critical. First,

as the Seventh Circuit explained, the district court’s amended explanation in Neal

contained information that was not in the record. Second, the defendant in Neal never

had an opportunity to contest the amended factual basis for the district court’s denial of

his motion before his time to appeal expired. Unlike in Neal, Whitney had the report; was

aware when he submitted his motion that the probation office and the government would

oppose his motion based on his misconduct; and had the opportunity to dispute that

misconduct. Cf. Styer, 573 F.3d at 154 (holding that the district court did not abuse its

discretion in denying defendant an evidentiary hearing where defendant failed to identify

“what information he would have presented at a hearing that he did not include in the

papers supporting his motion”). There was no need for a hearing because there was no

evidentiary dispute for the District Court to resolve. Accordingly, the District Court did

not err, much less commit plain error, in denying Whitney’s motion.

                                            II. Conclusion

       The order of the District Court will be affirmed.




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