     Case: 12-30342       Document: 00512110170         Page: 1     Date Filed: 01/11/2013




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

                                                                            FILED
                                                                         January 11, 2013
                                     No. 12-30342
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRAZIER THOMAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:03-CR-50073-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Frazier Thomas, now federal prisoner number 11833-035, was convicted
in 2004 of possession with intent to distribute more than 50 grams of cocaine
base and was sentenced to a 210-month term of imprisonment and to a five-year
period of supervised release. United States v. Thomas, 145 F. App’x 88, 89 (5th
Cir. 2005).     After the guidelines applicable to cocaine base offenses were
amended, Thomas’s sentence of imprisonment was reduced, on February 19,
2009, to 168 months. When the guidelines were amended again, the district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-30342

court entered an order, on November 2, 2011, granting Thomas’s motion for a
reduction of his sentence, but declining to reduce the sentence further. Thomas
moved for reconsideration, arguing that the district court procedurally erred in
granting the motion without modifying the sentence and that the district court
had failed to provide reasons for denial. The district court denied the motion.
Thomas gave timely notice of his appeal.
      Thomas contends that the district court abused its discretion in issuing an
order granting his motion for a reduction of his sentence that did not reduce his
sentence; that the district court did not provide adequate reasons for its decision;
and that the district court’s decision violated his right to due process by making
it impossible for him to respond to or address in a meaningful way the concerns
of the district court.
      We review the district court’s order for an abuse of discretion. See United
States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). The district court is required
to apply a two-step test in determining whether to reduce a defendant’s sentence
under § 3582(c)(2).      Id.   It must first determine whether a reduction is
authorized. Id. If it is, the court must then determine whether a modification
is warranted by considering the applicable statutory sentencing factors, “the
nature and seriousness of the danger to any person or the community that may
be posed by a reduction in the defendant’s term of imprisonment,” and, if
appropriate, the post-sentencing conduct of the defendant.            Id. (internal
quotation marks and citation omitted).           “When ruling on a motion for
modification of sentence, a district court need not mention the § 3553(a) factors
or articulate its reasoning for why the factors support its decision on the motion.
But, it must consider them.” Id.
      As in Larry, the district court in the instant case found, and the parties
agree, that modification of Thomas’s sentence was authorized by the amendment
of the cocaine base guidelines following enactment of the Fair Sentencing Act.
Unlike Larry, Thomas had an opportunity to present argument in support of his

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                                  No. 12-30342

contention that a modification of his sentence was warranted because he raised
those arguments in his motion for reconsideration. See 632 F.3d at 937.
      In denying the motion for reconsideration, the district court noted that the
168-month sentence fell within the amended sentencing range. The court stated
that it had reviewed the record and that it had determined again that no further
reduction was “warranted” and that the 168-month sentence was “appropriate.”
Based on these statements, it may be inferred that the district court considered
the statutory sentencing factors and other relevant factors. See id. at 936-37; see
also United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009) (inferring from
court’s statement that “no further reductions are warranted” that district court
understood it could grant a reduction and that it determined that none was
warranted); United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009) (inferring
that factors were considered because it had defendant’s arguments before it
when it ruled). The district court’s order is AFFIRMED.




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