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

                                                FILED
                                                                 October 26, 2009
                                No. 09-10045
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

DAVID EARL KATES,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 2:97-CR-42-1


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
      David Earl Kates, federal prisoner # 30428-077, appeals the district court’s
order denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c).
Kates was convicted by a jury of possession with intent to distribute cocaine
base. Kates argues that he is entitled to have his sentence reduced pursuant to
Amendment 709, which addressed two areas of the Guidelines’ criminal history
rules. Kates does not dispute that the amendment went into effect after he was



      *
      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should not be published and is not precedent except under the limited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. 09-10045

sentenced and that it is not listed by the Sentencing Commission’s policy
statement in U.S.S.G. § 1B1.10 as a guideline amendment that applies
retroactively. He argues, however, that the district court was not limited by the
Guidelines’ list of retroactively applicable amendments because, after United
States v. Booker, 543 U.S. 220 (2005), the Guidelines are advisory.
      We review the district court’s denial of Kates’s § 3582(c) motion for abuse
of discretion.   United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).
Amendment 709, on which Kates relies for his § 3582(c) motion, is not listed as
an amendment covered by the policy statement in § 1B1.10. See § 1B1.10(c).
Therefore, the plain language of § 3582(c) dictated that the district court was not
authorized to reduce a sentence based on Amendment 709 because that would
be inconsistent with Sentencing Commission policy. See § 1B.10, comment. (n.1);
§ 3582(c)(2). Moreover, this court has held that “Booker does not alter the
mandatory character of § 1B1.10’s limitations on sentence reductions.” United
States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). Kates has not shown that
the district court abused its discretion in denying his § 3582(c) motion.
      AFFIRMED.




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