USA v. Aaron Boutte, No. 09-30774 (5th Cir. 2010)
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Case: 09-30774 Document: 00511287336 Page: 1 Date Filed: 11/08/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-30774 Summary Calendar November 8, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. AARON ALEXANDER BOUTTE, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:97-CR-20034-1 Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Aaron Alexander Boutte, federal prisoner # 09562-035, appeals the district court s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce the 324-month sentence he received following his guilty plea conviction for conspiracy to distribute and distribution of crack cocaine. Boutte contends that the district court s denial of his § 3582(c)(2) motion was error. Although he concedes that, because he was held accountable for more than 4.5 kilograms of crack cocaine, his guidelines range was unaffected by the retroactive crack cocaine * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-30774 Document: 00511287336 Page: 2 Date Filed: 11/08/2010 No. 09-30774 amendments, he nevertheless urges that Booker v. United States, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85 (2007), and Gall v. United States, 552 U.S. 38 (2007), should apply in § 3582(c)(2) proceedings, allowing district courts to impose sentences lower than the two-level adjustment contemplated by the crack cocaine amendments based on the factors set forth in 18 U.S.C. § 3553(a). We review the district court s decision for an abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). As Boutte concedes, because his offense involved more than 4.5 kilograms of crack cocaine, the retroactive crack amendment does not lower his guidelines range, and the district court did not abuse its discretion in refusing to reduce his sentence. See § 3582(c)(2); U.S.S.G. §§ 1B1.10, comment. (n.1A) and 2D1.1. Moreover, the Supreme Court s decision in Booker does not apply to sentence reductions under § 3582(c)(2) because such proceedings are not full resentencings. United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v. United States, 130 S. Ct. 2683, 2691-93 (2010). Boutte s argument based on Booker and its progeny is therefore unavailing. AFFIRMED. 2
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