USA v. Peter Peltier, No. 09-30213 (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. 09-30213 Summary Calendar December 18, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff Appellee, v. PETER PELTIER, Defendant Appellant. Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:96-CR-60016-1 Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Peter Peltier, federal prisoner # 09259-035, appeals the district court s denial of 18 U.S.C. § 3582(c)(2) relief. Peltier is currently serving a sentence of 262 months for possession with intent to distribute cocaine base. In his challenge to the district court s judgment, Peltier argues that United States v. Booker, 543 U.S. 220 (2005), applies to proceedings involving sentencing reductions under § 3582(c)(2) as it does in original sentencing proceedings. He argues that although he was sentenced as a career offender * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30213 under U.S.S.G. § 4B1.1, the district court had discretion to reduce his sentence under § 3582(c)(2). We review Peltier s arguments de novo. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009), cert. denied, 130 S.Ct. 517 (2009). 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. See U.S.S.G. § 1B1.10, cmt. n.1(A) (2008). Peltier s guidelines range was not derived from the quantity of crack cocaine involved in the offense, but rather from his career offender status. The district court thus was correct in concluding that a reduction was not permitted under § 3582(c)(2). See § 1B1.10, cmt. n.1(A). We have rejected Peltier s Booker arguments. 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 marks and citation omitted). AFFIRMED. 2

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