United States v. Foster

358 F. App'x 523

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 21, 2009
• Docket: 08-10654
• Status: Unpublished

Opinion

PER CURIAM: *

Marcus Lynn Foster, federal prisoner # 30525-177, filed a motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). He sought a sentence reduction based on Amendment 706 to the Federal Sentencing Guidelines, which reduced the base offense level for most crack cocaine offenses. See United States v. Burns, 526 F.3d 852, 861 (5th Cir.2008). Foster appeals the district court’s denial of that motion. Foster argues that the district court erred by determining that because the crack cocaine amendments did not lower his guidelines range, he was ineligible for a sentence reduction under § 3582(c)(2).

Foster’s argument is premised, in part, upon his assertion that the prohibition set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), against the mandatory application of the Guidelines applies in § 3582(c)(2) proceedings. This court determined in United States v. Doublin, 572 F.3d 235, 238 (5th Cir.2009), cert. denied, — U.S. ---, 130 S.Ct. 517, — L.Ed.2d --- (2009), that “the concerns at issue in Booker do not apply in a 18 U.S.C. § 3582(c)(2) proceeding.” Also, “Booker does not alter the mandatory character of Guideline § lBl.lO’s limitations on sentence reductions.” Id. One such limitation is that a § 3582(c)(2) reduction is not authorized if an amendment “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B). In Foster’s case, the amended guidelines yielded the same sentencing range that was used when Foster was originally sentenced. The district court therefore did not err in denying Foster’s motion. See Doublin, 572 F.3d at 237; § 3582(c)(2); § lB1.10(a)(2)(B).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.