           Case: 12-11867   Date Filed: 02/13/2013   Page: 1 of 4

                                                     [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11867
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 4:99-cr-00177-BAE-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

DAVID KEVIN BANKS,
a.k.a. "D",

                                                     Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                            (February 13, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:
                   Case: 12-11867       Date Filed: 02/13/2013      Page: 2 of 4

         David Banks, proceeding pro se, appeals the district court’s denial of his

motion to reconsider the court’s order denying his 18 U.S.C. § 3582(c)(2) motion

to reduce his sentence. After careful review, we affirm.

         In 2000, Banks pleaded guilty to conspiracy to possess crack and powder

cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Based on a total offense level of 40 and a criminal history category of IV, Banks

had a guidelines range of 360 months’ to life imprisonment. The district court

granted the government’s motion for a downward departure under U.S.S.G.

§ 5K1.1 and sentenced Banks to 325 months.

         Banks appealed his sentence, and this court affirmed. 1 In 2011, Banks filed

a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on

Amendment 750 to the United States Sentencing Guidelines, which revised the

drug quantity tables and lowered Banks’s guidelines range to 210 to 262 months’

imprisonment. Banks requested that the district court apply the amended

guidelines range and the same 35-month downward departure he previously

received under U.S.S.G. § 5K1.1, which would result in a 175-month sentence.

The district court denied Banks’s motion, and Banks filed a motion to reconsider,

which the district court also denied because “[t]he defendant’s history and

characteristics, as well as the seriousness of his offense, clearly demand a sentence


1
    United States v. Banks, 247 F.3d 248 (11th Cir. 2001) (unpublished table decision).
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that protects the public from him for a very significant period of time.” This is

Banks’s appeal.

      We review the denial of a motion to reconsider for an abuse of discretion.

United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004). Where, as here, the

defendant was sentenced based on a guidelines range that was subsequently

lowered by the Sentencing Commission, the district court has discretion to reduce

his sentence under § 3582(c)(2). United States v. Bravo, 203 F.3d 778, 780 (11th

Cir. 2000). The district court also “has the discretion to decide whether to re-apply

a downward departure [under U.S.S.G. § 5K1.1] . . . .” United States v. Vautier,

144 F.3d 756, 761 (11th Cir. 1998). To decide whether a sentence reduction is

appropriate, “the court must consider the factors listed in [18 U.S.C.] § 3553(a) . . .

.” Id. at 760. The § 3553(a) factors include, inter alia, “the nature and

circumstances of the offense and the history and characteristics of the defendant”

and “the need . . . to protect the public from further crimes of the defendant.” 18

U.S.C. § 3553(a)(1), (2)(C).

      Banks has not shown that the district court abused its discretion in denying

his motion to reconsider the denial of his § 3582(c)(2) motion. Banks sold crack

cocaine and firearms to undercover government agents on multiple occasions, used

his 15-year-old nephew to assist in the crime, and had a criminal history that

included four offenses involving firearms, the most recent of which involved


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shooting and injuring two men. Banks argues that the district court abused its

discretion by relying on his 13-year-old criminal history, but the district court was

free to consider any information relevant to Banks’s “background, character, and

conduct” in evaluating the § 3553(a) factors. 18 U.S.C. § 3661; see United States

v. Tome, 611 F.3d 1371, 1379 (11th Cir. 2010). And Banks’s arguments

concerning the sentencing disparity between crack and powder cocaine do not

suggest the district court abused its discretion in declining to reduce his sentence in

this case based on the § 3553(a) factors. 2 See Bravo, 203 F.3d at 780-81. The

district court stated that it considered the § 3553(a) factors, and the court did not

abuse its discretion under § 3582(c)(2) in rejecting Banks’s motion based upon its

evaluation of those factors.

       AFFIRMED.




2
  To the extent Banks argues that the sentencing disparity is unconstitutional, that argument is
foreclosed. See United States v. Hanna, 153 F.3d 1286, 1287-89 (11th Cir. 1998).
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