     Case: 08-30801 Document: 00511300015 Page: 1 Date Filed: 11/19/2010




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

                                                 FILED
                                                                         November 19, 2010
                                     No. 08-30801
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

WILLIAM BAKER,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:03-CR-120-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       William Baker, federal prisoner # 28337-034, appeals the district court’s
judgment denying him an 18 U.S.C. § 3582(c)(2) sentence reduction even though
Baker’s base offense level was reduced pursuant to retroactive Amendment 706
to the crack cocaine Sentencing Guidelines. Baker is serving a 200-month
sentence for possession with intent to distribute 50 grams or more of cocaine
base. The district court declined to exercise its discretion to reduce Baker’s
sentence because it found that his 200-month sentence was “within the amended

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30801 Document: 00511300015 Page: 2 Date Filed: 11/19/2010

                                  No. 08-30801

guidelines range and appropriate after reviewing [his] PSI and prison record.”
The Government’s argument that Baker’s appeal is barred by the appeal waiver
contained in Baker’s plea agreement is foreclosed by our decision in United
States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009).
      Baker mistakenly asserts that the district court recalculated his offense
level as if he was sentenced as a career offender. He also mistakenly asserts
that his base offense level at sentencing was 31, instead of 33, and that his base
offense level should therefore have been reduced to 29, instead of 31, pursuant
to Amendment 706 to the crack cocaine Guidelines.
      Baker argues that, when the district court denied him a reduction to his
sentence, it failed to consider the 18 U.S.C. § 3553(a) factors, Kimbrough v.
United States, 552 U.S. 85 (2007), and United States v. Booker, 543 U.S. 220
(2005). He contends that the district court wrongly relied on his criminal history
and prison disciplinary record to deny his motion, although he concedes that the
district court could consider his post-sentencing conduct in deciding whether to
reduce his sentence. He complains that he did not have an opportunity to be
heard before the district court denied his motion, and he asks that his case be
remanded to the district court for an evidentiary hearing. Finally, he argues
that his sentence violates his right to equal protection under the law.
      A district court’s decision whether to reduce a sentence under § 3582(c)(2)
is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). If the record shows that the
district court gave due consideration to the motion as a whole and implicitly
considered the § 3553(a) factors, there is no abuse of discretion. See United
States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      Baker’s argument that the district court should have considered
Kimbrough and Booker is unavailing. See Dillon v. United States, 130 S. Ct.
2683, 2690-92 (2010); United States v. Doublin, 572 F.3d 235, 237-39 (5th Cir.),
cert. denied, 130 S. Ct. 517 (2009). Moreover, Baker may not raise an equal

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                                  No. 08-30801

protection challenge to his sentence in a § 3582(c) proceeding. See Whitebird, 55
F.3d at 1011 (“A § 3582(c)(2) motion is not a second opportunity to present
mitigating factors to the sentencing judge, nor is it a challenge to the
appropriateness of the original sentence.”).
      Baker’s criminal history and his post-sentence incarceration were
appropriate considerations for the district court when denying Baker a sentence
reduction. See United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert.
denied, 130 S. Ct. 3374 (2010); United States v. Jones, 370 F. App’x 477 (5th
Cir.), cert. denied, 2010 WL 2398569 (Oct. 18, 2010). In addition, Baker was not
entitled to a hearing in connection with his § 3582(c) motion. See F ED. R. C RIM.
P. 43(b)(4); United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994). As
Baker has not shown that the district court abused its discretion in denying him
a sentence reduction pursuant to § 3582(c)(2), the district court’s judgment is
AFFIRMED. See Evans, 587 F.3d at 672; Whitebird, 55 F.3d at 1010. His
motion to amend his appellate brief is GRANTED, and his motions to remand
the case and to hold his appeal in abeyance are DENIED.




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