     Case: 15-60273      Document: 00513527484         Page: 1    Date Filed: 05/31/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-60273                                    FILED
                                  Summary Calendar                              May 31, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JERMAINE LATHAM,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:01-CR-55-5


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Jermaine Latham appeals the denial of his 18 U.S.C. § 3582(c) motion to
reduce his 235-month sentence for possession of powder cocaine with intent to
distribute. Latham contends that comments made by the district court during
an unrelated § 3582(c) hearing three weeks after the denial of his motion
demonstrate, in retrospect, that it failed to consider the 18 U.S.C. § 3553(a)
factors in denying him relief. See United States v. Larry, 632 F.3d 933, 936


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60273     Document: 00513527484      Page: 2   Date Filed: 05/31/2016


                                  No. 15-60273

(5th Cir. 2011). Finding no abuse of the district court’s discretion, we affirm.
See United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).
      Both in its written order and in a separate statement of reasons, the
district court expressly cited § 3553(a) as the basis for its decision not to grant
Latham a sentence reduction. See Larry, 632 F.3d at 936. Latham argues,
however, that any assumption that the district court contemporaneously
considered § 3553(a) is rebutted by its subsequent comments, in which the
court failed to recall having previously denied Latham’s motion and noted the
divergence between its treatment of his motion and its normal § 3582(c)
protocol. See generally United States v. Evans, 587 F.3d 667, 673 (5th Cir.
2009).   This argument fails for two reasons.         First, the district court’s
consideration of § 3553(a) in this case is not merely implicit but, rather, is
explicitly documented. Second, the events of the subsequent § 3582(c) hearing
are irrelevant to our review because they “were not before the district court at
the time of the challenged ruling.” Theriot v. Par. of Jefferson, 185 F.3d 477,
491 n.26 (5th Cir. 1999).
      Because the record reflects the district court’s reliance on § 3553(a) to
deny Latham’s § 3582(c) motion, the judgment is AFFIRMED.




                                        2
