     Case: 12-30162     Document: 00512003259         Page: 1     Date Filed: 09/28/2012




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

                                                                            FILED
                                                                        September 28, 2012
                                     No. 12-30162
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRANDON SMITH, also known as Taburk,

                                                  Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:00-CR-319-3


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
           Brandon Smith, federal prisoner # 27265-034, appeals the denial of a
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Smith argues that
the denial of the motion has resulted in an above-guidelines sentence, even
though he was initially sentenced within the Sentencing Guidelines. We review
the district court’s decision for abuse of discretion. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30162     Document: 00512003259    Page: 2   Date Filed: 09/28/2012

                                 No. 12-30162

      In this case, the district court determined that Smith was eligible for a
reduction in sentence based on Amendment 750 of the Sentencing Guidelines;
however, the court concluded that a reduction was not appropriate due to
Smith’s misconduct while incarcerated. See Dillon v. United States, 130 S. Ct.
2683, 2691 (2010).     The district court properly considered Smith’s post-
sentencing conduct in determining whether to grant relief under § 3582(c)(2).
U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)); United States v. Larry, 632 F.3d 933,
936 (5th Cir. 2011). Moreover, the court had no obligation to grant such relief.
See Evans, 587 F.3d at 673-74.
      AFFIRMED.




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