     Case: 08-10399 Document: 00511276165 Page: 1 Date Filed: 10/27/2010




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

                                                 FILED
                                                                          October 27, 2010
                                     No. 08-10399
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TORRANCE DESHON LEE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                             USDC No. 1:98-CR-20-ALL


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Torrance Deshon Lee, federal prisoner # 25302-077, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence
following the recent amendments to the Sentencing Guidelines for crack cocaine
offenses. Lee argues that the district court erred in considering the sentencing
factors of 18 U.S.C. § 3553(a) and his post-sentencing disciplinary convictions to
deny his motion.         He also contends that he failed to get notice of the
Government’s response to his motion prior to the ruling by 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10399 Document: 00511276165 Page: 2 Date Filed: 10/27/2010

                                    No. 08-10399

      Section 3582 directs the court to consider the § 3553(a) factors.            See
§ 3582(c); United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009), cert. denied,
130 S. Ct. 3462 (2010). If the record shows that the district court gave due
consideration to the motion as a whole and at least implicitly considered the
§ 3553(a) factors, then there is no abuse of discretion. See United States v.
Cooley, 590 F.3d 293, 296 (5th Cir. 2009); United States v. Whitebird, 55 F.3d
1007, 1010 (5th Cir. 1995).
      The district court had the benefit of Lee’s § 3582(c)(2) motion, his
attachments to that motion, and the Government’s response. In issuing its
ruling, the district court specifically referred to several of the factors listed under
§ 3553(a). Thus, the record reflects that the district court considered Lee’s
motion and the § 3553(a) factors. See Evans, 587 F.3d at 673; Whitebird, 55 F.3d
at 1010. To the extent Lee is arguing that the district court erred by basing the
denial of his motion on his prison disciplinary record, the 2008 amendments to
the Sentencing Guidelines allow a court to consider a defendant’s post-
sentencing conduct. U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)). In addition, we
have “decline[d] to hold that a district court cannot consider post-conviction
conduct in determining whether to grant a sentencing reduction under
§ 3582(c)(2).” United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert.
denied, 130 S. Ct. 3374 (2010).
      Lee also contends that he was entitled to notice of the Government’s
response to his § 3582(c)(2) motion because the district court relied on the “new
evidence” included in it to deny relief. See United States v. Townsend, 55 F.3d
168, 172 (5th Cir. 1995). Even if we assume that the amendments to § 1B1.10
were insufficient to provide notice that his prison disciplinary record could be
considered, and even if we assume that Lee’s own record constitutes “new
evidence” under Townsend, Lee has not shown that any error by the district
court rose to the level of harmful error because his arguments against the new
evidence would not entitle him to relief. See United States v. Mueller, 168 F.3d

                                          2
    Case: 08-10399 Document: 00511276165 Page: 3 Date Filed: 10/27/2010

                                 No. 08-10399

186, 189-90 (5th Cir. 1999). Consequently, the judgment of the district court is
AFFIRMED.




                                       3
