Opinion
No. 08-31021 Summary Calendar.
October 9, 2009.
Liddell Smith, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, Duro Julius Duplechin, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.
Betty Lee Marak, Federal Public Defender's Office, Western District of Louisiana, Shreveport, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana, USDC No. 5:91-CR-50073-1.
Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.
Billy Ray Tatum, federal prisoner #07727-035, appeals the district court's denial of relief under 18 U.S.C. § 3582(c)(2) (granting district court discretion to modify sentence when Sentencing Guideline upon which sentence was based is subsequently amended). Tatum is serving consecutive sentences of 193 months and 60 months of imprisonment for possession with intent to distribute cocaine and cocaine base and for using and carrying a firearm during a drug trafficking offense.
In his challenge to the district court's judgment, Tatum contends United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies to proceedings involving sentencing reductions under § 3582(c)(2) as it does in original sentencing proceedings. He asserts that, although he was sentenced as a career offender under Sentencing Guideline § 4B1.1 (Nov. 1992), the district court had discretion to reduce his sentence under § 3582(c)(2).
Although we review for abuse of discretion the district court's decision not to reduce Tatum's sentence, we review de novo its interpretation or application of the Sentencing Guidelines. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). Accordingly, we review Tatum's contentions de novo.
Section 3582(c)(2) permits the discretionary modification of a defendant's sentence where the sentencing range is later lowered by the Sentencing Commission "if such a reduction is consistent with the policy statements issued by the Sentencing Commission". United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Eligibility for consideration under § 3582(c)(2) is triggered only by an amendment that lowers the applicable guidelines range. USSG § 1B1.10, comment. (n. 1(A)).
Tatum maintains his sentence should have been reduced because Sentencing Guideline § 2D1.1 (providing sentencing guidelines for crack cocaine offenses) was amended in 2007. Tatum's guidelines range, however, was not derived from the quantity of crack cocaine involved in the offense; instead, it was pursuant to his career-offender status. Accordingly, the district court was correct in concluding that a reduction was not permitted under § 3582(c)(2). See § 3582(c)(2); USSG § 1B1.10, comment. (n. 1(A)).
In addition, our court has rejected Tatum's contentions based on Booker. See Doublin, 572 F.3d at 238-39. "[T]he concerns at issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding". Id. at 238. Although the Guidelines must be treated as advisory in an original sentencing proceeding, Booker does not prevent Congress from incorporating a Guideline provision "as a means of defining and limiting a district court's authority to reduce a sentence under § 3582(c)". Id. at 239 (internal quotation and citation omitted).
AFFIRMED.