     Case: 11-51253       Document: 00512054787         Page: 1     Date Filed: 11/15/2012




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

                                                                            FILED
                                                                        November 15, 2012
                                     No. 11-51253
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DEANTE DEMONE BLACKMON, also known as Dopey, also known as
B-Murder, also known as Deon,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:03-CR-53-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Deante Demone Blackmon, federal prisoner # 35542-180, filed a 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on the Fair Sentencing Act and
recent amendments to the Sentencing Guidelines relating to offenses involving
crack cocaine. The district court denied Blackmon’s § 3582(c)(2) motion and his
motion for reconsideration of that denial. Blackmon filed a timely notice of
appeal.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51253

      Blackmon argues that the district court procedurally erred when it failed
to make the initial determination whether he was eligible for relief under
§ 3582(c)(2) as required by United States v. Dillon, 130 S. Ct. 2683, 2691 (2010).
The district court’s determination that Blackmon was eligible for such relief was
implied by its consideration of the issue whether relief was warranted in this
case. See United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). Blackmon
also argues that the district court did not comply with Dillon’s requirement that
it consider the 18 U.S.C. § 3553(a) sentencing factors contemporaneously in
making the discretionary decision whether relief was warranted. See Dillon, 130
S Ct. at 2692. This argument, however, is contradicted by the record.
      Asserting further procedural error, Blackmon argues that the district
court failed to consider his post-sentencing conduct. In deciding whether relief
is warranted under § 3582, a district court is allowed to consider such conduct,
but it is not required to do so. United States v. Evans, 587 F.3d 667, 673 & n.10
(5th Cir. 2009); U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)). Blackmon’s post-
sentencing argument was presented in the district court, and we assume that
the district court considered the argument. See Evans, 587 F.3d at 672-73.
Blackmon’s contention that the law-of-the-case doctrine prevented the district
court from considering his past criminal activity and the fact that his criminal
history score underrepresented that criminal history is unavailing as the
Sentencing Guidelines instruct the district court to consider such information.
See § 1B1.10, comment. (n.1(B)(i-ii)).
      Finally, Blackmon maintains that the district court’s denial of relief
indicates that it was blind to the guidelines amendments’ purpose of reducing
the disparity between sentences for crack and powder cocaine offenses. The
order denying relief referenced the § 3553(a) factors and reflects that the district
court gave due consideration to Blackmon’s motion as a whole. Thus, there was




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                                No. 11-51253

no abuse of discretion. See Evans, 587 F.3d at 674; United States v. Whitebird,
55 F.3d 1007, 1010 (5th Cir. 1995).
      AFFIRMED.




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