     Case: 12-30735       Document: 00512162911         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013
                                     No. 12-30735
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KEVIN PHILLIPS, also known as Head Phillips,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-142-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kevin Phillips, federal prisoner # 31092-034, pleaded guilty to conspiracy
to possess with the intent to distribute more than 50 grams of crack cocaine and
more than 500 grams of cocaine hydrochloride, in violation of 21 U.S.C. § 846,
and was sentenced at the low end of the applicable guidelines range to 188
months of imprisonment. He appeals the district court’s denial of a sentence
reduction, pursuant to 18 U.S.C. § 3582(c)(2), based upon the amendment to the
Guidelines implementing the Fair Sentencing Act of 2010.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30735     Document: 00512162911     Page: 2   Date Filed: 03/04/2013

                                  No. 12-30735

      Phillips maintains that he was entitled to a sentencing reduction, and he
urges that the district court erred in giving excessive weight to “negative
factors,” such as his criminal history, instead of focusing on his positive post-
sentencing rehabilitative efforts. He asserts that the district court improperly
balanced the 18 U.S.C. § 3553(a) factors and that, had it properly balanced them,
it would have reduced his sentence to the low end of the modified range, 155
months.
      We review the decision to reduce a sentence pursuant to § 3582(c)(2) for
an abuse of discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009). In determining whether to reduce a sentence, the court first determines
whether a sentence modification is authorized and to what extent. Dillon v.
United States, 130 S. Ct. 2683, 2691 (2010). Next, the court must consider any
applicable 18 U.S.C. § 3553(a) sentencing factors and determine whether any
reduction is warranted. Id. at 2692.
      The district court implicitly determined that Phillips was eligible for a
reduction, see United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011), but
concluded that a reduction was not warranted in the light of the § 3553(a) factors
and the circumstances of his case. Having concluded that Phillips was eligible
for a reduction, the court was under no obligation to reduce his sentence. See
Evans, 587 F.3d at 673; U.S.S.G. § 1B1.10, comment. (n.1(B)(i-iii)). The court
properly considered the § 3553(a) factors and Phillips’ post-sentencing conduct.
See Evans, 587 F.3d at 672-73; § 1B1.10, cmt. n.1 (B)(i)-(iii). No abuse of
discretion has been shown. See United States v. Henderson, 636 F.3d 713, 717
(5th Cir. 2011). Accordingly, the judgment of the district court is AFFIRMED.




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