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

                                                 FILED
                                                                         November 17, 2009
                                     No. 08-50609
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAMES DEION MOREAU, also known as D-Ray,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:06-CR-30-ALL


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       In 2006 James Deion Moreau, federal prisoner # 27924-180, pleaded guilty
to one count of possessing with intent to distribute five grams or more of crack
cocaine. See 21 U.S.C. § 841(a) and (b)(1)(B). He appeals the denial of his
motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) based on
amendments to the Sentencing Guidelines that lowered the applicable offense
level for crack cocaine offenses.          Moreau contends that the district court
(1) focused too intently on his crime of conviction and gave too much weight to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50609

his criminal history, (2) erred by considering his record of arrests that did not
result in convictions, and (3) attributed too much significance to his prison
disciplinary record.
      Section 3582 permits the modification of a defendant’s sentence when the
guidelines range is later lowered by the Sentencing Commission.                See
§ 3582(c)(2); see also United States v. Doublin, 572 F.3d 235, 236 (5th Cir. 2009);
United States v. Robinson, 542 F.3d 1045, 1048-49 (5th Cir. 2008). Amendment
706 modified the guidelines ranges applicable to crack cocaine offenses to reduce
the disparity between crack cocaine and powder cocaine sentences. U.S.S.G.
Supp. to App’x C, Amend. 706; United States v. Burns, 526 F.3d 852, 861 (5th
Cir. 2008). In general, the effect of Amendment 706 is to decrease by two levels
the base offense levels for crack cocaine offenses. See Amend. 706; U.S.S.G.
§ 2D1.1; Doublin, 572 F.3d at 236. The district court’s decision on a § 3582(c)(2)
motion is ordinarily reviewed for abuse of discretion. Doublin, 572 F.3d at 237.
      The exercise of sentencing discretion in § 3582(c)(2) proceedings requires
that the district court consider, inter alia, the factors set forth in 18 U.S.C.
§ 3553. See Robinson, 542 F.3d at 1048; U.S.S.G. § 1B1.10. This includes the
defendant’s criminal history and the need to protect the public. See § 3553(a).
Moreau’s contention that his youthful criminal conduct was too remote to justify
the denial of the requested reduction is belied by the record.
      Moreau’s contention that it was error to consider his arrest record also
provides no ground for relief. Moreau did not raise this issue in the district
court; thus, our review is for plain error. See F ED. R. C RIM. P. 51(b); United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert. denied,
2009 WL 1849974 (Oct. 5, 2009) (No. 08-11099). To show plain error, Moreau
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Even if we assume that the consideration of prior arrests constitutes error that
is clear or obvious, see United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007),

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Moreau is unable to show that the alleged error affected his substantial rights.
Consideration of his arrest record had no effect on the guidelines recalculation.
The record shows that the district court considered all the circumstances,
properly weighed the pertinent factors, and declined to grant § 3582(c)(2) relief
because it decided that an 84-month sentence was appropriate. Moreau has not
shown plain error, nor has he established entitlement to relief on this claim. See
Puckett, 129 S. Ct. at 1429; United States v. Jones, 444 F.3d 430, 437-38 (5th Cir.
2006).
      Moreau’s attempt to show that it was an abuse of discretion to consider his
post-sentencing conduct fails as well.      See § 1B1.10, comment. (n.1(B)(iii)).
Moreau’s numerous disciplinary infractions following his imprisonment evidence
his lack of respect for authority and bolster the district court’s concerns that
Moreau will recidivate when released.
      The district court did not abuse its discretion or commit plain error in
denying the reduction sought by Moreau. See Doublin, 572 F.3d at 237; Puckett,
129 S. Ct. at 1429.
      AFFIRMED.




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