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

                                                 FILED
                                                                           August 20, 2009
                                     No. 08-30897
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

ROBERT D HARRELL

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CR-190-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Robert D. Harrell appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his 168-month sentence, pursuant to 21 U.S.C.
§§ 841(a)(1) and 846, for conspiracy to distribute and possess with the intent to
distribute 50 grams or more of cocaine base.               The motion was based upon
Amendment 706 to the Sentencing Guidelines, which lowered the sentencing



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30897

ranges for offenses involving crack cocaine. The district court, in denying the
motion, determined: Harrell’s original 168-month sentence was within the
amended guidelines range of 135-168 months; and it was appropriate,
considering all sentencing factors.
      Harrell maintains the district court arbitrarily denied his § 3582(c)(2)
motion without regard to case-specific facts, such as his post-conviction
rehabilitative conduct, or consideration of the factors in 18 U.S.C. § 3553(a).
Harrell contends a “sentencing range overlap”, by itself, cannot be used to justify
the denial of a reduction. He claims that, if the district court believed he did not
deserve a reduction, it should have cited case-specific reasons.          (Because
Harrell’s claim fails, we need not reach whether this appeal is barred by his
waiver of his right to appeal in his plea agreement.)
      The denial of a § 3582 motion is reviewed for abuse of discretion. United
States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).        Section 3582 permits a
defendant to move, under certain circumstances, for discretionary modification
of his sentence if it was based on a sentencing range that the Sentencing
Commission later lowered. See § 3582(c)(2); United States v. Gonzalez-Balderas,
105 F.3d 981, 982 (5th Cir. 1997).       Reductions under § 3582(c)(2) are not
mandatory. United States v. Doublin, 572 F.3d 235, 2009 WL 1743661, at *3
(5th Cir. 22 June 2009). As noted supra, the district court, in its order denying
Harrell’s § 3582(c)(2) motion, stated: “The sentence imposed is within the
amended guidelines range and is appropriate considering all sentencing factors.”
This statement demonstrates the district court calculated and considered the
amended guidelines range and considered the § 3553 factors. See United States
v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).           Moreover, the Crack
Amendment Eligibility Information Sheet shows the district court was aware of
Harrell’s non-violent, post-conviction rehabilitative conduct. Finally, there is no
indication the court was under the mistaken impression that it could not reduce



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                                  No. 08-30897

Harrell’s sentence further under § 3582(c)(2). See United States v. Shaw, 30
F.3d 26, 28-29 (5th Cir. 1994).
      AFFIRMED.




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