                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 22 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   20-10043

                Plaintiff-Appellee,             D.C. No.
                                                2:07-cr-00109-TLN-1
 v.

EDDIE HOUSTON, Jr.,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                             Submitted May 14, 2020**
                                Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District
Judge.

      Mr. Eddie Houston, Jr. appeals the district court’s order denying his motion

for a sentence reduction under section 404 of the First Step Act of 2018, Pub. L. No.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
115-391, 132 Stat. 5194, 5222. The district court had jurisdiction under 18 U.S.C.

§ 3231 and we have jurisdiction on appeal under 28 U.S.C. § 1291. We review the

district court’s denial of Houston’s motion under 18 U.S.C. § 3582(c)(1)(B) for

abuse of discretion and any underlying questions of law de novo. See United States

v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009) (reviewing discretionary denials of

sentence reduction motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion).

Abuse of discretion includes applying the incorrect law or relying on a clearly

erroneous finding of material fact. Id. The district court did not abuse its discretion,

and we affirm.

      Houston argues that the district court’s order misstated the law in finding him

ineligible under the First Step Act, and abused its discretion by failing to consider

the 18 U.S.C. § 3553(a) factors and his related arguments. Houston’s contention

that the district court deemed him ineligible for a sentence reduction under the First

Step Act is based on a misreading of the district court’s order. While not as clear as

it could have been, the district court did not deem Houston ineligible for a sentence

reduction. If that had been the basis for the court’s decision, then there would have

been no reason for the court to explain that Houston’s current sentence is “well-

supported” and “falls within the modified statutory penalty range and at the low end

of the applicable guideline range.” Nor would the district court have exercised its

discretion to “decline[] to reduce” Houston’s sentence; it would have simply denied


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his request as a matter of law. What the district court did was presume without

deciding Houston’s eligibility, stating that the “plain language of the [First Step Act]

suggests that the Court may reduce Defendant’s sentence.” It then exercised its

discretion to “decline[] to reduce” further Houston’s sentence.

      We follow the district court’s approach, and assume without deciding that

Houston is eligible for a sentence reduction under the First Step Act. Assuming

Houston was eligible, the district court did not abuse its discretion in rejecting his

request for a further sentence reduction. The district court denied Houston’s motion

principally on the grounds that retroactively applying the Fair Sentencing Act to his

offense did not counsel for a further decrease in a sentence that was already “well-

supported” and within the statutory guideline ranges. Houston argues on appeal that

the district court was required to “provide a sufficient explanation” for rejecting his

specific contention that he merited a reduced sentence based on the section 3553(a)

factors (regarding his troubled childhood and current age), his post-conviction

record of rehabilitation, and his release plan. See United States v. Trujillo, 713 F.3d

1003, 1009–11 (9th Cir. 2013) (requiring some consideration of section 3553(a)

factors for motions under section 3582(c)(2)).

      But Houston brought his motion under 18 U.S.C. § 3582(c)(1)(B), which

omits the requirement that courts consider section 3553(a) factors in modifying

sentences. Compare 18 U.S.C. § 3582(c)(1)(B) (no requirement to consider the


                                           3
section 3553(a) factors) with id. § 3582(c)(1)(A) (requiring consideration of

section 3553(a) factors) and id. § 3582(c)(2) (same). Thus, the district court was not

required to consider the section 3553(a) factors here.

      Four years after granting a previous sentence reduction, the district court

reasonably declined to find Houston merited a further decrease, even assuming the

First Step Act applies. The district court did not abuse its discretion in denying

Houston a further sentence reduction of a sentence that is already “well-supported”

under the First Step Act.1

      AFFIRMED.




1
 Houston’s motion to remand this case to a different district court judge is denied
as moot.

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