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

                                                 FILED
                                                                        September 11, 2009

                                     No. 08-31091                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

BOBBY DEAN HARDNETT,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:04-CR-5-1


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Bobby Dean Hardnett appeals the district court’s denial of a reduction in
his sentence under 18 U.S.C. § 3582(c)(2) based on an amendment to the
Sentencing Guidelines lowering the sentencing range for offenses involving crack
cocaine. We AFFIRM the district court’s judgment.
       Hardnett was originally sentenced to 97 months in prison, consisting of
three concurrent 37-month terms for drug and firearms offenses (counts I, II,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 08-31091

and III), and a mandatory consecutive 60-month term for possession of a firearm
in furtherance of a drug trafficking crime (count IV). Hardnett’s guideline range
for counts I, II and III was 70 to 87 months, but the court granted the
Government’s U.S.S.G. § 5K1.1 motion, which yielded a range of 37 to 46
months. If the amendment to the Sentencing Guidelines for crack offenses had
been in effect at the time of Hardnett’s sentencing, the guideline range would
have been 57 to 71 months. A similar § 5K1.1 reduction to Hardnett’s offense
level would have further lowered the range to 30 to 37 months. Hardnett argues
that the district court committed procedural error and abused its discretion by
refusing to reduce his sentence by changing the counts I, II, and III terms to 30
months, instead of 37 months, which would have meant a reduced sentence of
90 months.
      We review the denial of a § 3582 motion for abuse of discretion only.
United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). “[R]eductions under 18
U.S.C. § 3582(c)(2) are not mandatory; this section merely gives the district court
discretion to reduce a sentence under limited circumstances.” United States v.
Doublin, 572 F.3d 235, 238 (5th Cir. 2009). When a sentencing range has been
lowered by the Sentencing Commission, the district court may reduce a
previously imposed term of imprisonment “if such a reduction is consistent with
applicable      policy   statements   issued   by    the   Sentencing   Commission.”
§ 3582(c)(2).
      The Guideline policy statements provide that the district court “shall
determine the amended guideline range that would have been applicable to the
defendant” had the amended guideline been in effect at the time of sentencing.
U.S.S.G. § 1B1.10(b)(1). The court substitutes only the amended guideline
provision and leaves all other guideline application decisions unaffected. Id.
The policy statements further provide that “[i]f the original term of
imprisonment imposed was less than the term of imprisonment provided by the

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guideline range applicable to the defendant at the time of sentencing, a
reduction comparably less than the amended guideline range determined under
subdivision      (1)   of   this   subsection   may    be   appropriate.”     U.S.S.G.
§ 1B1.10(b)(2)(B).
         Here, the probation office’s report correctly advised the district court that
Hardnett’s amended guideline range would have been 57 to 71 months had the
crack offense amendment been in effect at the time of Hardnett’s sentencing.
The district court also properly noted that Hardnett’s original term of
imprisonment was lower than the guideline range at the time of sentencing
because of the § 5K1.1 motion. Hardnett argues that under § 1B1.10(b)(2)(B) a
“reduction comparably less than the amended guideline range” required the
district court to lower his sentence to 30 months, and he cites the example of a
comparably lower sentence in the guideline commentary. See § 1B1.10, cmt. n.3.
But § 1B1.10(b)(2)(B) is itself discretionary, stating only that a comparable
reduction     “may     be   appropriate.”   §   1B1.10(b)(2)(B)   (emphasis    added).
Furthermore, the district court applied the same § 5K1.1 reduction to the
amended guideline range that had been applied to the original guideline range.
This resulted in a range of 30 to 37 months, and the court determined that
Hardnett’s sentence did not warrant a further reduction. We see no reversible
error.
         As part of its decision, the district court is required to consider the
sentencing factors of § 3553(a). See § 3582(c). The court also “shall consider”
any public safety concern that a reduction may pose and “may consider” any
post-sentencing behavior by the defendant. § 1B1.10, cmt. n.1(B)(ii), (iii). Here,
the district court expressly noted its consideration of “public protection” and the
“totality of circumstances.” The court considered Hardnett’s extensive criminal
history, as evident by his criminal history category V, and the fact that he had
been sanctioned with the loss of good time for assaultive behavior while in

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prison. We conclude that the district court did not abuse its discretion by
denying Hardnett relief.    We also conclude that the district court did not
erroneously fail to hold an evidentiary hearing. Hardnett not only failed to
object to the probation office’s sentencing report, but he also never requested a
hearing despite being advised of the procedure to do so under the district court’s
plan for considering cases affected by the retroactive cocaine base guideline
amendment.
      Because we conclude that Hardnett cannot prevail on the merits of his
claim, we need not reach the Government’s contention that Hardnett’s appeal
is barred by an appeal waiver in his plea agreement.
      AFFIRMED.




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