          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  June 24, 2009
                                No. 08-10949
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

DERICK DEVUN HAYNES

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                         USDC No. 3:03-CR-372-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Derick Devun Haynes, federal prisoner # 31338-177, pleaded guilty to
possession of cocaine base with intent to distribute and aiding and abetting and
carrying and possessing a firearm in furtherance of drug trafficking and aiding
and abetting. He appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction of his sentence. Haynes based his motion on the United
States Sentencing Commission’s adoption of Amendment 706, which modified



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10949

the sentencing ranges applicable to crack cocaine offenses to reduce the disparity
between crack cocaine and powder cocaine sentences.           See United States
Sentencing Commission, Guidelines Manual, Supp. to Appendix C, Amendment
706, p. 226-31 (Nov. 1, 2007) (amending U.S.S.G. § 2D1.1(c)).
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, 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). The
decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and we
review the denial of a § 3582 motion for abuse of discretion. United States v.
Boe, 117 F.3d 830, 831 (5th Cir. 1997).
      Haynes has not shown that the district court abused its discretion in
denying his motion to reduce his sentence. A reduction in Haynes’s base offense
level under § 2D1.1 pursuant to Amendment 706 would not affect his guidelines
range of imprisonment, because the guidelines range was calculated under
U.S.S.G. § 4B1.1. Because Haynes’s guidelines range of imprisonment was not
derived from the quantity of crack cocaine involved in the offense, Haynes was
not sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission. See § 3582(c)(2). To the extent that Haynes argues
that the district court had the discretion to reduce his sentence under
§ 3582(c)(2) in the light of United States v. Booker, 543 U.S. 220 (2005), the
argument is unavailing because Booker did not involve a retroactive amendment
to the Guidelines. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
The district court did not abuse its discretion in denying Haynes’s motion for a
reduction of sentence.
      AFFIRMED.




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