     Case: 12-30092     Document: 00511995257         Page: 1     Date Filed: 09/21/2012




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

                                                                            FILED
                                                                        September 21, 2012
                                     No. 12-30092
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JONATHAN SIMMONS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CR-192-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jonathan Simmons, federal prisoner # 30700-034, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of his sentence
for possession of five grams or more of cocaine base with intent to distribute and
possession of a firearm by a convicted felon. Simmons argues that the district
court abused its discretion by denying his § 3582(c)(2) motion. He maintains
that the district court improperly focused solely on his prison disciplinary offense
instead of balancing that factor with positive factors such as his following the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30092    Document: 00511995257    Page: 2   Date Filed: 09/21/2012

                                 No. 12-30092

district court’s directive to pursue a GED. He asserts that he should not be
negatively affected by the Bureau of Prisons’ (BOP) refusal to allow him to take
vocational classes until he earns his GED, and he notes that under Tapia v.
United States, 131 S. Ct. 2382 (2011), a court may not lengthen a prison sentence
to foster rehabilitation.
      The district court ruled that Simmons was eligible for a sentence
reduction, but it declined to grant such a reduction because of Simmons’s prison
disciplinary offense. We need not consider the applicability of Tapia because the
record shows that the district court merely expressed frustration with the BOP’s
handling of Simmons’s rehabilitation, and it denied the § 3582(c)(2) motion
because of the prison disciplinary offense. Simmons does not dispute that he
committed the prison disciplinary offense. In light of Simmons’s serious prison
disciplinary offense, the district court did not abuse its discretion by denying
Simmons’s § 3582(c)(2) motion. See United States v. Smith, 595 F.3d 1322, 1323
(5th Cir. 2010).
      AFFIRMED.




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