     Case: 08-10439 Document: 00511278904 Page: 1 Date Filed: 10/29/2010




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

                                                 FILED
                                                                          October 29, 2010
                                     No. 08-10439
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DONNIE RAY WILLARD, JR.,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                             USDC No. 5:02-CR-83-ALL


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Donnie Ray Willard, Jr., federal prisoner # 28690-177,
appeals the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence
following the recent amendments to the Sentencing Guidelines for crack cocaine
offenses. Willard pleaded guilty to possession with intent to distribute more
than 50 grams of cocaine base (crack cocaine) and was sentenced to 188 months
in prison.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10439 Document: 00511278904 Page: 2 Date Filed: 10/29/2010

                                  No. 08-10439

      Willard contends the district court erred in:       (1) failing to order the
Probation Office to amend the presentence investigation report (PSR) to reflect
the two-level reduction (pursuant to the amendments) in his base offense level;
(2) failing to apply the reduction to his sentence; (3) relying on his prior felony
convictions and arrests, which he maintains were waived by the Government as
part of the plea agreement; (4) relying on his post-sentencing conduct because
he had no prior notice such evidence would be considered; (5) denying him
opportunity to object or refute the evidence at a hearing, in violation of his due
process rights; and (6) failing to appoint him counsel.
      Guideline Amendments 706 and 711 effectively decreased the base-offense
levels for crack cocaine offenses by two levels. See United States v. Burns, 526
F.3d 852, 861 (5th Cir. 2008); U.S.S.G. § 2D1.1; U.S.S.G. Supp. to App’x C,
Amend. 706, 711. When a defendant’s term of imprisonment is lowered by an
amendment to the Sentencing Guidelines, the district court “may reduce the
term of imprisonment, after considering the factors set forth in section 3553(a)
to the extent that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission”. 18 U.S.C.
§ 3582(c)(2) (emphasis added). As reflected by the above-emphasized language
in § 3582(c)(2), the district court is not compelled to grant a sentence reduction
under that section. United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009),
cert. denied, 130 S. Ct. 3462 (2010). The denial of a § 3582(c)(2) motion is
reviewed for abuse of discretion. See id. at 671-72.
      Willard’s contention concerning the court’s failure to amend his PSR and
denial of his motion for a two-level reduction is refuted by the record. First,
pursuant to Guideline § 1B1.10(b), the district court’s order of dismissal stated
it determined the amended Guideline range applicable if the amendment had
been in effect at the time of the original sentence. Second, there is no authority,
and Willard points to none, requiring the Probation Office to amend the original
PSR or promulgate an addendum reflecting the specific Guideline range

                                        2
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                                   No. 08-10439

generated by the amendment. Third, Willard has not directed our court to any
authority that would require the district court to specifically recite the numerical
parameters of the amended Guideline range. Fourth, the sentencing court is not
required to provide reasons for its denial of a § 3582 motion, explain its
consideration of § 3553(a) factors, or specifically enumerate the amended
Guidelines range. See Evans, 587 F.3d at 674.
      With respect to Willard’s contention concerning the district court’s
consideration of his post-sentence conduct and pre-arrest criminal history, the
2008 amendments to the Guidelines specifically authorize the district court to
consider Willard’s post-sentencing conduct. U.S.S.G. § 1B1.10, cmt. n.1(B)(iii).
In addition, our court has “decline[d] to hold that a district court cannot consider
post-conviction conduct in determining whether to grant a sentencing reduction
under § 3582(c)(2)”. United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert.
denied, 130 S. Ct. 3374 (2010). Moreover, consideration of Willard’s criminal
history was proper and was not waived by the express language of Willard’s plea
agreement. See U.S.S.G. § 1B1.10, cmt. n.1.(B)(ii); § 3553(a).
      Further, even assuming these developments constituted “new evidence”
requiring notice, Willard has not shown harmful error because his assertions
would not entitle him to relief. See United States v. Mueller, 168 F.3d 186,
189-90 (5th Cir. 1999).
      The district court did not abuse its discretion by denying Willard’s motion
for a sentence reduction without an evidentiary hearing because he asserted no
disputed facts. See Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984); F ED.
R. C RIM . P. 43(b)(4).   Additionally, there was no abuse of discretion in not
appointing Willard counsel. See United States v. Whitebird, 55 F.3d 1007, 1010-
11 (5th Cir. 1995).
      AFFIRMED.




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