     Case: 08-50441     Document: 00511034558          Page: 1    Date Filed: 02/24/2010




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

                                                  FILED
                                                                          February 24, 2010
                                     No. 08-50441
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CRAIG DUANE HARRELL,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:04-CR-76-ALL


Before GARWOOD, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
        Craig Duane Harrell, federal prisoner # 27382-180, appeals from the grant
of his 18 U.S.C. § 3582(c)(2) motion, which reduced the sentence he is serving for
the offense of aiding and abetting the possession with intent to distribute five
grams or more of cocaine base (crack cocaine) to a term within the amended
guidelines range.       His sole contention is that the district court abused its




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50441       Document: 00511034558 Page: 2              Date Filed: 02/24/2010
                                    No. 08-50441

discretion by failing to reduce his sentence to the bottom (instead of only to
slightly below the midpoint) of the lowered guideline range.1
       The decision whether, and to what extent, to reduce a sentence under
§ 3582(c)(2) is reviewed for abuse of discretion. See United States v. Evans, 587
F.3d 667 (5th Cir. 2009). Under that well-established standard, we may not
substitute our judgment for that of the sentencing court as to the
appropriateness of a particular sentence. Rita v. United States, 551 U.S. 338,
364 (2007).
       The district court stated that it had considered the 18 U.S.C. § 3553(a)
factors in reducing Harrell's sentence from 100 months to 92 months and stated
its belief that the 92-month sentence would meet the sentencing objectives set
forth in 18 U.S.C. § 3553(a)(2) and be appropriate in Harrell’s case.2 The court
also considered public safety and Harrell's post-sentencing conduct in
determining the extent of the reduction. Thus, the court acted in accordance
with U.S.S.G. § 1B1.10, comment. (n.1(b)), in determining the extent of the
reduction.     Additionally, the district court considered the Government’s
arguments against any reduction and Harrell’s arguments that he should be
sentenced at the bottom of the amended guidelines range, that he had served 50
months of his sentence with no problems at all, and that his criminal history had
been considered at the time of his original sentence. The district court did not
abuse its discretion in determining the extent of the reduction. See Evans, 587


       1
        Before the district court, the government, though conceding that Harrell was eligible
for sentence reduction, took the position that as a matter of the district court’s discretion he
should be denied any reduction.
       2
        Harrell’s August 2004 sentence for his conviction of aiding and abetting possession of
five grams or more of crack cocaine with intent to distribute carried a 2003 guideline range
of 100 to 125 months. His April 2008 sentence reduction under § 3582(c)(2) applied the
retroactively calculated guideline range of the lowered crack cocaine guidelines, which
produced a range of 84 to 105 months. There is no challenge to the correctness of these
guideline ranges. At the April 2008 proceeding and on appeal Harrell has been represented
by appointed counsel.


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                                  No. 08-50441

F.3d at 672; see also United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.
1995). Harrell essentially asks this court to substitute his assessment of the
factors for that of the district court, which we will not do. See Rita, 551 U.S. at
364.3
        AFFIRMED.




        3
        We reject the government’s contention that the extent of the reduction is not
reviewable on appeal, see Evans, but agree with its contention that there was no abuse of
discretion.

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