     Case: 08-30612     Document: 00511067194          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. 08-30612
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DERRICK DAVIS,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:01-CR-45-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Derrick Davis, federal prisoner # 27435-034, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence for two counts
of distribution of cocaine base based on Amendment 706 of the Sentencing
Guidelines. He argues that the district court abused its discretion when, despite
his exemplary post-sentencing conduct, it denied his motion solely on the basis
that the amended guidelines sentencing range overlapped with his original 100-
month sentence. The Government asserts that Davis waived the right to bring

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30612    Document: 00511067194 Page: 2         Date Filed: 03/31/2010
                                 No. 08-30612

the instant appeal under the terms of his plea agreement.           We reject the
Government’s argument. See United States v. Cooley, 590 F.3d 293, 296-97 (5th
Cir. 2009).
      A proceeding under § 3582(c)(2) does not constitute a full resentencing.
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), petition for cert. filed,
(U.S. 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. Id. Davis’s motion to
reduce his sentence included a request that the district court base its decision
on mitigating factors set forth by Davis. The district court’s ruling indicates that
it considered the amended guidelines range but determined that no reduction in
sentence was warranted. Where, as here, the record shows that the district
court gave due consideration to the motion as a whole and implicitly considered
the 18 U.S.C. § 3553(a) factors, there is no abuse of discretion. See id. at 674;
United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). To the extent
Davis is complaining that the district court failed to articulate reasons for
denying his § 3582(c)(2) motion, his argument is foreclosed. See Cooley, 590 F.3d
at 298.
      AFFIRMED.




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