United States of America v. Allen Eugene Stewart

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7394
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN EUGENE STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:05-cr-00031-JRS-1)
Submitted: November 13, 2012 Decided: November 16, 2012
Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen Eugene Stewart, Appellant Pro Se. Olivia L. Norman,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Allen Eugene Stewart appeals the district court’s
order denying his motion seeking a reduction of sentence under
18 U.S.C. § 3582(c)(2) (2006). This court reviews the denial of
a § 3582(c)(2) motion for abuse of discretion. United States v.
Munn, 595 F.3d 183, 186 (4th Cir. 2010). A district court
abuses its discretion if it relies on an erroneous factual or
legal premise. DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th
Cir. 2008).
Pursuant to § 3582(c)(2), a district court may modify
the term of imprisonment “of a defendant who has been sentenced
. . . based on a sentencing range that has subsequently been
lowered by the Sentencing Commission,” if the Guidelines
amendment is retroactively applicable. 18 U.S.C. § 3582(c)(2).
Nevertheless, whether to reduce the defendant’s sentence lies
within the discretion of the district court: “The court is not
required to reduce a defendant’s sentence, even where the
current sentence is above the amended guidelines range.” United
States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010).
In determining whether to grant such a reduction, the
district court must consider the sentencing factors listed in 18
U.S.C. § 3553(a) (2006) and the policy statements of the
Sentencing Commission. 18 U.S.C. 3582(c)(2); U.S. Sentencing
Guideline Manual (“USSG”) § 1B1.10, cmt. n.1(B)(i). Included

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among these factors is the need to protect the public. See 18
U.S.C. § 3553(a)(2)(C); USSG § 1B1.10 cmt. n.1(B)(ii). A
district court may also “consider post-sentencing conduct of the
defendant that occurred after imposition of the original term of
imprisonment” in determining whether to grant a sentence
reduction. USSG § 1B1.10 cmt. n.1(B)(iii).
Our review of the record convinces us that the
district court did not abuse its discretion in denying Stewart,
on the basis of public safety, a reduction of sentence,
notwithstanding the fact that Amendment 750 to the Sentencing
Guidelines has altered the base offense level applicable to
Stewart’s offense. Accordingly, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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