                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-6332


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DAVID TOBIAS MAY,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:07-cr-00058-JPJ-PMS-1)


Submitted: October 31, 2019                                  Decided: November 8, 2019


Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Juval O. Scott, Federal Public Defender, Roanoke, Virginia, Lisa Marie Lorish, Assistant
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Thomas T. Cullen, United States Attorney,
Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       David Tobias May appeals the district court’s order denying his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2) (2012). May pled guilty to drug and

firearm offenses pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement. May sought

to reduce his sentence under Amendment 782 to the Sentencing Guidelines, which lowered

the offense levels applicable to most drug trafficking offenses by two levels and is

retroactively applicable. See U.S. Sentencing Guidelines Manual § 1B1.10(d), p.s. (2018);

supp. app. C, amend. 782. May argues on appeal that the district court failed to understand

its obligation to consider all the relevant 18 U.S.C. § 3553(a) (2012) factors in ruling on

his motion to reduce sentence, and failed to consider all his mitigation arguments and

adequately explain the denial of relief. We affirm.

       We review the denial of a § 3582(c)(2) motion for abuse of discretions but “whether

a court ruling on a motion to reduce under § 3582(c)(2) must provide an individualized

explanation is considered de novo.” United States v. Martin, 916 F.3d 389, 395 (4th Cir.

2019). The district court found that May was eligible for a sentence reduction because

Amendment 782 lowered May’s Guidelines sentencing range for the drug offenses but

declined to impose a lower sentence. * The district court noted its authority to reduce May’s

sentence after considering the applicable § 3553(a) factors, public safety concerns, and

May’s postsentencing conduct.       The court acknowledged May’s arguments that his



       *
         The Government does not contest the district court’s finding that May was eligible
for relief under Amendment 782.

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criminal history category was too high, that he had no disciplinary infractions during his

current incarceration, and that at 55 years of age he was unlikely to reoffend. The court

found that “May’s history reveals him to be a dangerous individual with little regard for

the law,” and as a result the court was “not convinced that May is likely to live a law-

abiding life upon his release from prison.” The court determined that a lengthy period of

incarceration was required to protect the public, and that, based on “the nature and

characteristics of his crimes and all of the information contained in the [presentence report],

. . . that May’s current sentence of 240 months remains appropriate despite Amendment

782’s two-offense-level reduction for his drug offenses.” (J.A. 108).

       We conclude that the district court understood its obligation to consider the relevant

§ 3553(a) factors in determining whether to grant May’s motion, Dillon v. United States,

560 U.S. 817, 826-27 (2010). Thus, May’s first argument is without merit.

       May next argues that the district court erred in failing to properly consider

mitigating factors, and failing to adequately explain its decision. When evaluating the

sufficiency of a sentencing court’s explanation for a denial of a § 3582(c)(2) motion, there

is a presumption that the district court sufficiently considered relevant § 3553(a) factors,

see United States v. Legree, 205 F.3d 724, 728-29 (4th Cir. 2000). However, “[e]vidence

of mitigating factors not available at the original sentencing has indeed been used to rebut

the Legree presumption,” and a court may err if it fails to provide “an individualized

explanation for why it chose to deny [a] motion,” Martin, 916 F.3d at 396.

       May asserts that the district court did not acknowledge, or expressly consider, his

new mitigation arguments based on his completion of a drug treatment program, his

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attainment of a GED, and that the court’s failure to lower his sentence would result in

unwarranted sentencing disparities with other similarly-situated defendants.                “The

fundamental problem with this contention is that new arguments cannot be raised in a reply

brief. Thus, in failing to consider a reply brief, the district court did not fail to consider all

relevant factors properly before it.” United States v. Smalls, 720 F.3d 193, 197 (4th Cir.

2013) (citation omitted). Based upon the facts and circumstances of this case, we conclude

that the district court adequately addressed the arguments raised in May’s motion for

reduction of sentence and explained its decision to deny relief.

       Accordingly, we affirm. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                                    AFFIRMED




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