                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-3253
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              LaQuan Dwayne Carter

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                            Submitted: October 21, 2013
                             Filed: November 6, 2013
                                  [Unpublished]
                                  ____________

Before RILEY, Chief Judge, MURPHY, and COLLOTON, Circuit Judges.
                             ____________

PER CURIAM.

      LaQuan Carter was convicted of conspiracy to distribute crack cocaine,
conspiracy to possess firearms in relation to drug trafficking, distribution of crack
cocaine, and violent crime in aid of racketeering. The district court1 sentenced him
to 405 months imprisonment, at the top of the sentencing guideline range. After the
guidelines were amended to reduce the base offense levels for crack cocaine, Carter
brought this motion under 18 U.S.C. § 3582(c). He sought a reduced sentence of 210
months, which was within the retroactively recommended range of 210 to 262
months. The district court reduced Carter's sentence to 365 months, and Carter
appeals. We affirm.

       LaQuan Carter was an enforcer for the "Family Mob," a street gang of some
two dozen members that sold crack cocaine at the intersection of Chicago and
Franklin Avenues in Minneapolis. At trial witnesses testified that Carter urged his
fellow conspirators to organize themselves like the Mafia, that he carried a gun and
that he protected their control over their heavily trafficked street corner by threatening
to beat or kill competitors. Testimony also connected Carter to two homicides. One
witness testified that she first heard a man tell Carter to shoot her boyfriend in the
head and then the shot which killed him. Another testified that Carter shot into a car
approaching the neighborhood, killing the driver.

      After Carter was convicted on all counts, the district court found him
responsible for distributing at least 1.5 kilograms of crack cocaine, triggering a base
offense level of 38, the highest level for a drug offense. The court increased the
offense level to 40 after adding an enhancement for possession of firearms. With this
offense level and a criminal history category of II, Carter's sentencing range was 324
to 405 months. The district court sentenced Carter to 405 months.

      While serving his sentence Carter made significant steps toward rehabilitation.
He renounced his gang affiliation, became a facilitator in a course to help both new


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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inmates adjust to incarceration and those ending their terms prepare for release,
worked in the prison chaplain's program, developed a business plan for a future
janitor service company, and became involved in the lives of his children.

       After the advisory guidelines for crack cocaine offenses were amended, Carter
brought a motion under 18 U.S.C. § 3582(c) to reduce his sentence. The United
States opposed any reduction because of Carter's violent criminal history. While the
district court indicated that his original sentence was appropriate, it decided to reduce
his sentence by 40 months due to his rehabilitative progress. Carter appeals, arguing
that the district court abused its discretion by giving too much weight to the homicide
evidence and insufficient weight to the fairness considerations behind the guideline
amendment and to Carter's rehabilitation efforts.

       Where a defendant "has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered . . . the court may reduce the
term of imprisonment." 18 U.S.C. § 3582(c)(2). We review a district court's decision
to reduce a sentence under § 3582(c)(2) for abuse of discretion. United States v.
Burrell, 622 F.3d 961, 964 (8th Cir. 2010). When exercising its discretionary
authority to reduce a sentence, "the district court must first calculate the amended
guideline range and determine what sentence it would have imposed had the new
amended guideline range been in effect at the original sentencing." United States v.
Whiting, 522 F.3d 845, 852 (8th Cir. 2008). It should "then consider that
determination together with the general sentencing considerations contained in 18
U.S.C. § 3553(a) and, in the exercise of its thus informed discretion, decide whether
or not to modify the original sentence previously imposed." Id. (internal quotation
marks and brackets omitted).

       After determining Carter's sentencing range under the amended guideline, the
district court concluded that his original sentence remained appropriate "[f]or the
reasons" given by the government. The government had asserted that Carter's

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participation "in a ruthless criminal street gang . . .[had] made conditions in areas of
South Minneapolis dangerous and unlivable." It had also asserted that Carter's
involvement in two killings and his role as a violent defender of the area controlled
by the gang meant that his criminal history category of II "greatly under-represents
past crimes he has committed and his true propensity to commit future crimes." In
the government's view, Carter's use of guns to commit assault and homicide in pursuit
of the conspiracy's drug trafficking operations demonstrated that he had "no respect
for law while we was on the street and not incarcerated."

       Carter argues that the district court improperly weighed the two alleged
murders in its reconsideration under § 3582(a). A court may however "rely for
sentencing purposes upon a fact that a jury had found unproved (beyond a reasonable
doubt)." United States v. Booker, 543 U.S. 220, 251 (2005) (emphasis in original).
In determining whether alleged but uncharged or unproven criminal conduct should
be considered at sentencing, the district court has "an institutional advantage over
appellate courts." Gall v. United States, 552 U.S. 38, 52 (2007). Here, the district
court determined that the record, including testimony about Carter's involvement in
two killings, indicated that the "the nature and circumstances of the offense and the
history and characteristics of the defendant," § 3553(a)(1), justified his original 405
month prison sentence.

        Carter also contends that the district court failed adequately to consider the
fairness component that motivated the amendment to the crack sentencing guideline,
quoting from a speech in which Attorney General Eric Holder stated that "the 100-to-
1 crack-powder sentencing ratio is simply wrong" and that it "is plainly unjust to hand
down wildly disparate prison sentences for materially similar crimes." (June 19,
2009), http://www.justice.gov/ag/speeches/2009/ag-speech-090619.html. The statute
itself states that a district court "may reduce the term of imprisonment" of a defendant
"who has been sentenced to a term of imprisonment on a sentencing range that has
subsequently been lowered." 18 U.S.C. § 3582(c)(2) (emphasis added). It is thus

                                          -4-
clear that a reduction is not required, even if authorized. United States v. Johnson,
703 F.3d 464, 470–71 (8th Cir. 2013). The record here demonstrates that the district
court's concern was not focused so much on the amount of crack distributed, but
rather on Carter's willingness to use violence to further his gang's drug trafficking
activities.

        Finally, Carter argues that the district court's 40 month reduction in his prison
sentence failed to account fully for his rehabilitation. The guidelines do now allow
a court to "consider post-sentencing conduct of the defendant" when considering a
sentencing reduction motion under § 3582(c). U.S.S.G. § 1B1.10 cmt. n. 1(B)(iii).
 Here, the district court elected to reduce Carter's prison sentence by 40 months due
to his "post-sentencing rehabilitative progress." It was under no obligation to reduce
it further, and we conclude it did not abuse its discretion by amending Carter's
sentence to 365 months.

      Accordingly, the district court's order is affirmed.
                      ______________________________




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