USA v. Jones, No. 08-40777 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-40777 Conference Calendar December 15, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALVIN JONES, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:92-CR-53-3 Before KING, JOLLY, and SOUTHWICK, Circuit Judges. PER CURIAM:* Alvin Jones, federal prisoner # 03778-078, appeals the denial of his 18 U.S.C. § 3582 motion to reduce his 240-month sentence following his guilty plea conviction for distributing crack cocaine. Jones filed a motion for a reduced sentence pursuant to § 3582(c)(2) in which he sought a reduction in his sentence based on Amendment 706 to the crack cocaine Guidelines. Jones appeals the district court s denial of that motion. The Government has filed a motion for * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 08-40777 summary affirmance or, alternatively, for an extension of time to file a brief on the merits. Although the district court s decision whether to reduce a sentence ordinarily is reviewed for an abuse of discretion, a court s interpretation of the Guidelines is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Because the district court s denial of Jones s motion was based on its determination that Jones s sentence remained the same under the amended Guidelines, review is de novo. See id. 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). Sentence reductions under § 3582 are thus governed by the policy statements of the Guidelines. Doublin, 572 F.3d at 237. Under the amended Guidelines, however, Jones s offense level remained the same. The district court was thus correct in concluding that a reduction was not permitted under § 3582(c)(2). See § 3582(c)(2). Jones s argument that the district court had the discretion to reduce his sentence under § 3582 in light of United States v. Booker, 543 U.S. 220 (2005), is unavailing because the concerns at issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding. Doublin, 572 F.3d 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). The district court thus did not err in denying Jones s motion for a reduction of sentence. The district court s judgment is AFFIRMED. The Government s motion for summary affirmance is GRANTED, and its motion for an extension of time is DENIED. 2
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