     Case: 08-30627     Document: 00511067423          Page: 1    Date Filed: 03/31/2010




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

                                                  FILED
                                                                           March 31, 2010
                                     No. 08-30627
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RODNEY POWELL,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:01-CR-81-7


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Rodney Powell, federal prisoner # 27457-034, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence for conspiracy
to possess with intent to distribute cocaine base and cocaine hydrochloride based
on Amendment 706 of the Sentencing Guidelines. He argues that the district
court abused its discretion when it denied his motion solely on the basis that his
original sentence was below both the original and amended guidelines ranges.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30627    Document: 00511067423 Page: 2          Date Filed: 03/31/2010
                                 No. 08-30627

      Although Powell has completed his term of imprisonment, he is currently
serving his term of supervised release. Accordingly, this appeal is not moot. See
Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006).             We reject the
Government’s assertion that Powell waived the right to bring the instant appeal
under the terms of his plea agreement. See United States v. Cooley, 590 F.3d 293
(5th Cir. 2009).
      A proceeding under § 3582(c)(2) is not a full resentencing. United States
v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), petition for cert. filed, (Jan. 28, 2010)
(No. 09-8939). Consequently, the bifurcated reasonableness review standard
afforded sentencing decisions is inapplicable in the § 3582(c)(2) context. Id. at
672. Rather, we review the district court’s determination of whether to reduce
a sentence for an abuse of discretion. Cooley, 590 F.3d at 297. Where, as here,
the record shows that the district court gave due consideration to the motion as
a whole and implicitly considered the factors in § 3553(a), we discern no abuse
of discretion. See id.; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.
1995).
      AFFIRMED.




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