     Case: 12-10067     Document: 00512009349         Page: 1     Date Filed: 10/04/2012




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

                                                                            FILED
                                                                          October 4, 2012
                                     No. 12-10067
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

AVERY LASHAUN BENNETT, also known as Soldier,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:04-CR-41-4


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Avery Lashaun Bennett, federal prisoner # 32980-177, proceeding pro se
and in forma pauperis, challenges the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion seeking modification of his 2005 sentence of 188 months of
imprisonment for possession with intent to distribute less than 50 grams of
cocaine base and aiding and abetting.
        The decision to reduce a sentence pursuant to § 3582(c)(2) is reviewed for
abuse of discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10067    Document: 00512009349      Page: 2    Date Filed: 10/04/2012

                                  No. 12-10067

2009). In determining whether to reduce a sentence, the court first determines
whether a sentence modification is authorized and to what extent. Dillon v.
United States, 130 S. Ct. 2683, 2691 (2010). Next, the court must consider any
applicable 18 U.S.C. § 3553(a) sentencing factors and determine whether any
reduction is warranted. Id. at 2692.
      The court implicitly determined Bennett was eligible for a reduction, see
United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011), but concluded that it
was not warranted in the light of the § 3553(a) factors and the circumstances of
his case. Having concluded that Bennett was eligible for a reduction, the court
was under no obligation to reduce his sentence. See United States v. Evans, 587
F.3d 667, 673 (5th Cir. 2009); U.S.S.G. § 1B1.10, comment. (n.1(B)(i-iii)). The
court properly considered the § 3553(a) factors and Bennett’s post-sentencing
conduct. See Evans, 587 F.3d at 672-73; U.S.S.G. § 1B1.10, cmt. n.1 (B)(i)-(iii).
We see no abuse of discretion in the court’s determination.
      In his reply brief, Bennett argues for the first time that there is a disparity
in the way defendants’ motions for reduction of sentences are handled,
specifically referring to two other individuals. This court generally does not
consider arguments raised for the first time in a reply brief. See United States
v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010). In any event, Bennett has not
shown that the two people he cited have similar criminal records, which include
gang membership, or similar post-sentencing conduct involving sexual conduct.
Thus, he has not shown that any disparity was unwarranted.
      Bennett has failed to show that the district court abused its discretion in
denying § 3582(c)(2) relief. The judgment of the district court is AFFIRMED.




                                         2
