     Case: 13-30657      Document: 00512538263         Page: 1    Date Filed: 02/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 13-30657                                  FILED
                                  Summary Calendar                        February 20, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

PHIL ANDREW WILSON,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              No. 5:02-CR-50038-1




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       Phil Wilson, federal prisoner # 11370-035, appeals the denial of his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30657       Document: 00512538263   Page: 2   Date Filed: 02/20/2014


                                  No. 13-30657

motion for reconsideration of the denial of his 18 U.S.C. § 3582(c)(2) motion to
reduce his sentence based on the amendments to the crack-cocaine sentencing
guideline. Wilson contends that (1) the district court erroneously denied relief
based on the 2007 amendments to the guideline instead of the 2010 amend-
ments, and (2) he was eligible for a sentence reduction pursuant to U.S.S.G.
§ 1B1.10(b)(2)(B) because, after the district court had denied his § 3582 motion,
his sentence was reduced based on the government’s motion pursuant to
Rule 35 of the Federal Rules of Criminal Procedure, which, in turn, reduced
his guideline range under the Fair Sentencing Act of 2010 (“FSA”).
      We review the denial of a motion for reconsideration for an abuse of dis-
cretion. United States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997); United
States v. Caulfield, 536 F. App’x 509, 509-10 (5th Cir.), cert. denied, 134 S. Ct.
708 (2013). A motion for reconsideration “must clearly establish either a mani-
fest error of law or fact or must present newly discovered evidence” and “cannot
be used to raise arguments which could, and should, have been made before
the judgment issued” or “to argue a case under a new legal theory.” Simon v.
United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (internal quotation marks
and citation omitted).
      Wilson’s position is without merit. First, the record reflects that the dis-
trict court properly construed his § 3582 motion as arising under the 2010
amendments. In its order denying the motion, the court stated that the FSA
did not reduce Wilson’s guideline range. Second, because Wilson argues that
he is entitled to a sentence reduction pursuant to a new legal theory, i.e.,
U.S.S.G. § 1B1.10(b)(2)(B), that was not presented to the district court, he has
not shown a manifest error of law or fact. See Simon, 891 F.2d at 1159. Third,
even if we assume that Wilson has shown that his guideline range was reduced
by the FSA, the court exercised its discretion and decided that a further



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                                 No. 13-30657

sentence reduction was not warranted based on the 18 U.S.C. § 3553(a) factors
and specifically noted that Wilson distributed significant amounts of cocaine,
that he was a leader or manager of the conspiracy, and that he received an
obstruction-of-justice enhancement. See United States v. Dillon, 560 U.S. 817,
826-27 (2010).
      The court did not abuse its discretion in denying the motion for reconsid-
eration. See O’Keefe, 128 F.3d at 892. AFFIRMED.




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