     Case: 08-30636     Document: 00511085409          Page: 1    Date Filed: 04/20/2010




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

                                                 FILED
                                                                            April 20, 2010
                                     No. 08-30636
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BENNY LOCKE, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:05-CR-80-3


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Benny Locke, Jr., federal prisoner # 29315-034, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on the
amendments to the crack cocaine Guideline. Locke argues that the district court
arbitrarily denied his § 3582(c)(2) motion without regard to case-specific facts,
such as his post-conviction rehabilitative conduct, or consideration of the factors
in 18 U.S.C. § 3553(a). He contends that a “sentencing range overlap,” by itself,
cannot be used to justify the denial of a reduction and that the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-30636    Document: 00511085409 Page: 2         Date Filed: 04/20/2010
                                 No. 08-30636

should have cited case-specific reasons for denying the motion. Locke’s appeal
waiver does not bar this appeal. See United States v. Cooley, 590 F.3d 293 (5th
Cir. 2009).
      We review the district court’s determination of whether to reduce a
sentence pursuant to § 3582(c)(2) for an abuse of discretion. United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009), petition for cert. filed (Jan. 28, 2010)
(No. 09-8939). The sentencing court is not required to provide reasons for its
denial of a § 3582(c)(2) motion or to explain its consideration of the § 3553(a)
factors. Id. at 673-74. If the record shows that the district court gave due
consideration to the motion as a whole and implicitly considered the § 3553(a)
factors, there is no abuse of discretion. See United States v. Whitebird, 55 F.3d
1007, 1010 (5th Cir. 1995).
      Although the district court did not discuss the § 3553(a) factors expressly,
the record reflects that it considered them. See Evans, 587 F.3d at 673. The
district court’s decision denying the motion indicates that it understood that
Locke’s original sentence was within the amended guidelines range and shows
that the district court considered the amended guidelines range but determined
that no reduction in sentence was warranted. Under these circumstances, the
court gave due consideration to the motion to reduce Locke’s sentence and
implicitly considered the § 3553(a) factors. The record reflects that the district
court was made aware of Locke’s good conduct in prison, and there is no reason
to believe that the district court believed erroneously that it could not reduce his
sentence. Accordingly, Locke has not shown that the district court’s denial of his
motion was an abuse of discretion. See id. at 673-74; Whitebird, 55 F.3d at 1010.
      AFFIRMED.




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