Case: 19-40748       Document: 00515522872             Page: 1     Date Filed: 08/11/2020




            United States Court of Appeals
                 for the Fifth Circuit                              United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                   No. 19-40748                      August 11, 2020
                                 Summary Calendar
                                                                      Lyle W. Cayce
                                                                           Clerk

 United States of America,

                                                                 Plaintiff—Appellee,

                                         versus

 Shannon Keith Harris,

                                                             Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 3:03-CR-14-1


 Before King, Smith, and Wilson, Circuit Judges.
 Per Curiam:*
        Shannon Harris appeals the life sentence imposed upon the grant of
 his motion for resentencing under the First Step Act, Pub. L. No. 115-391,
 132 Stat. 5194 (2018). Harris was originally sentenced to a mandatory term
 of life imprisonment for conspiracy to possess and possession of cocaine base



        *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
 ion should not be published and is not precedent except under the limited circumstances
 set forth in 5th Circuit Rule 47.5.4.
Case: 19-40748      Document: 00515522872          Page: 2     Date Filed: 08/11/2020




                                   No. 19-40748


 with intent to distribute. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii); 21 U.S.C.
 § 846. After passage of the First Step Act and the Fair Sentencing Act of
 2010, Harris was no longer subject to a mandatory life term. The district
 court declined to conduct a plenary resentencing and sentenced Harris
 within the guidelines range of 360 months to life.
        A ruling on a motion to resentence under the First Step Act is gener-
 ally reviewed for abuse of discretion. United States v. Jackson, 945 F.3d 315,
 319 (5th Cir. 2019), cert. denied, 2020 WL 1906710 (U.S. Apr. 20, 2020)
 (No. 19-8036). A district court abuses its discretion if its decision is based on
 an error of law or a clearly erroneous assessment of the evidence. United
 States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011); see United States v.
 Hegwood, 934 F.3d 414, 418 (5th Cir.), cert. denied, 140 S. Ct. 285 (2019).
        First, Harris contends that the district court erred by failing to re-
 calculate the guideline range and sentence him according to the current
 guidelines, but he concedes that that argument is foreclosed by Hegwood,
 934 F.3d at 418−19. Next, he contends that his sentence is procedurally and
 substantively unreasonable. The government responds that reasonableness
 review does not apply because it does not apply in similar proceedings under
 18 U.S.C. § 3582(c)(2). See United States v. Evans, 587 F.3d 667, 672 (5th
 Cir. 2009). We need not decide the extent to which reasonableness review is
 called for, because Harris cannot succeed even under the ordinary standard.
 See United States v. Richardson, 960 F.3d 761, 764 (6th Cir. 2020).
        Harris maintains that the district court procedurally erred by mis-
 calculating the guideline range and failing adequately to explain the sentence
 or address his arguments for a lower sentence. See Gall v. United States,
 552 U.S. 38, 51 (2007). Harris posits that the career-offender enhancements
 under U.S.S.G. § 4B1.1 did not apply at the time of the original sentencing.
 This issue is subject to plain error review. See Puckett v. United States,




                                        2
Case: 19-40748      Document: 00515522872         Page: 3    Date Filed: 08/11/2020




                                  No. 19-40748


 556 U.S. 129, 135 (2009); United States v. Mason, 722 F.3d 691, 693 (5th Cir.
 2013). We have not decided whether, in a First Step Act proceeding, a dis-
 trict court must or may revisit an error made in the original sentencing hear-
 ing. Accordingly, Harris cannot demonstrate that the court plainly erred by
 failing to do so. See United States v. Salinas, 480 F.3d 750, 756 (5th Cir.
 2007). Further, because the record shows that the district court considered
 the arguments, the evidence, and the 18 U.S.C. § 3553(a) factors, the court
 did not err by failing to explain the sentence or to respond to Harris’s argu-
 ments. See Rita v. United States, 551 U.S. 338, 357 (2007); United States v.
 Rodriguez, 523 F.3d 519, 525−26 (5th Cir. 2008).
        Finally, Harris asserts that his sentence does not account for factors
 that should have received significant weight and that the district court erred
 in balancing the sentencing factors. Harris’s arguments that the district court
 should have given more consideration to his personal history and character-
 istics and the nature and circumstances of his offense amount to disagree-
 ments over how the factors “presented for the court’s consideration should
 have been balanced,” which is not sufficient to overcome the presumption of
 reasonableness applicable to his within-guidelines sentence. See United
 States v. Alonzo, 435 F.3d 551, 557 (5th Cir. 2006). Moreover, unwanted
 sentencing disparities among similarly situated defendants are not entitled to
 significant weight when the sentence falls within the guideline range. See
 United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011).
        The judgment of sentence is AFFIRMED.




                                       3
