     Case: 17-11165      Document: 00514743890         Page: 1    Date Filed: 11/30/2018




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

                                    No. 17-11165                           FILED
                                  Summary Calendar                 November 30, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

KENDRICK JERMAINE FULTON, also known as Ken Fulton,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:02-CR-94-2


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Kendrick Jermaine Fulton moved in the district court pursuant to 18
U.S.C. § 3582(c)(2) for a reduction in his 400-month sentence of imprisonment
based on Amendment 782 to the Sentencing Guidelines. In determining the
amended guidelines range, the drug quantity findings orally stated by the
district court at Fulton’s sentencing hearing were employed, rather than the
drug quantity findings expressed in the Presentence Report (PSR). The district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-11165

court determined that Amendment 782 reduced Fulton’s guidelines range to
324 to 405 months of imprisonment, but it denied a sentence reduction, and
Fulton timely appealed.
      Fulton contends, in essence, that the drug quantities stated in the PSR
should have been used to determine his amended guidelines range for purposes
of his motion for a reduction in sentence. We agree with the Government that
the law-of-the-case doctrine precludes us from reexamining this issue, which
was decided in United States v. Fulton, 670 F. App’x 353, 354 (5th Cir. 2016),
cert. denied, 137 S. Ct. 2175 (2017), wherein Fulton challenged the denial of a
previous § 3582(c)(2) motion. See United States v. Agofsky, 516 F.3d 280, 283
(5th Cir. 2008). In any event, Fulton’s claim also fails because he has not
shown that the district court plainly erred by using its orally stated drug
quantity findings to determine his offense level under Amendment 782. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
      In a related argument, Fulton contends that the district court abused its
discretion by denying his motion for a sentence reduction without conducting
an evidentiary hearing. He contends that an evidentiary hearing is needed to
resolve the question whether the district court, which adopted the PSR, also
adopted the PSR’s determination of drug quantity.          It is clear from the
sentencing transcript that the district court made findings as to drug quantity
that differed from the PSR’s findings, as it was entitled to do. See United States
v. Solis, 299 F.3d 420, 456 (5th Cir. 2002). Fulton has not shown that the
district court abused its discretion in denying the motion for a sentence
reduction without conducting an evidentiary hearing        See Dickens v. Lewis,
750 F.2d 1251, 1255 (5th Cir. 1984).
      Finally, Fulton contends that his sentence of 400 months of
imprisonment is longer than the sentences of similarly-situated criminal



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                                No. 17-11165

defendants nationwide. He argues that there is an unwarranted disparity that
should be addressed by reducing his sentence.      A district court’s decision
whether to reduce a sentence under § 3582(c)(2) is reviewed for an abuse of
discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). Because
the record shows that the district court gave due consideration to Fulton’s
motion as a whole and considered the 18 U.S.C. § 3553(a) factors, there was no
abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th
Cir. 1995).
      In view of the foregoing, the judgment of the district court is AFFIRMED.
Fulton’s request that counsel be appointed to present oral argument is
DENIED.




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