Case: 22-50873 Document: 00516702393 Page: 1 Date Filed: 04/05/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50873 Summary Calendar FILED ____________ April 5, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Charles Edward Johnson, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 6:07-CR-97-1 ______________________________ Before Smith, Southwick, and Douglas, Circuit Judges.

Per Curiam: * Charles Johnson, federal prisoner #83808-180, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce the 365-month sentence im- posed for possession with intent to distribute at least five grams of a mixture or substance containing cocaine base within 1,000 feet of a public elementary school. Johnson sought reduction of his sentence based on Amendment 750 to the Sentencing Guidelines and in light of his post-sentencing conduct. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

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The district court decided that Johnson was not entitled to early release because he posed a serious danger to society, and the 18 U.S.C. § 3553(a) sentencing factors did not warrant a reduction. We review for abuse of dis- cretion the decision whether to reduce a sentence under § 3582(c)(2). United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).

Johnson contends that the district court violated Concepcion v. United States, 142 S. Ct. 2389 (2022), by failing to consider his post-sentencing con- duct. He also asserts that the court did not properly evaluate the factors that supported the grant of a reduction. Johnson additionally moves for summary judgment.

In Concepcion, the Court addressed § 404(b) of the First Step Act and determined that if a prisoner is eligible for relief under that provision because he was convicted of one of certain offenses that involve cocaine base, the dis- trict court may consider a wide range of factors upon resentencing. Concep- tion, 142 S. Ct. at 2396, 2401–05. There is no indication that Concepcion broadened the scope of what district courts may consider when ruling on a § 3582(c)(2) motion, which, per the express dictates of Congress, may be granted only if a reduction is consistent with the applicable policy statements of the Sentencing Commission. See id. at 2401–05; § 3582(c)(2).

In any event, Johnson has not shown that the district court abused its discretion. See Henderson, 636 F.3d at 718. The court did not have to con- sider his rehabilitative conduct in determining whether a reduction was mer- ited. See United States v. Evans, 587 F.3d 667, 673 & n.10 (5th Cir. 2009).

The record otherwise suggests that the court gave due consideration to the § 3582(c)(2) motion—in which Johnson contended that he was entitled to an early release based on his post-sentencing conduct—as well as the applicable § 3553(a) factors. See Henderson, 636 F.3d at 718; Evans, 587 F.3d at 673. To the extent that Johnson disagrees with the weight the court gave to certain

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factors, he may not show that the court abused its discretion on that basis.

See Evans, 587 F.3d at 672–73.

Accordingly, the judgment is AFFIRMED. The motion for sum- mary judgment is DENIED.