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

                                                  FILED
                                                                             April 3, 2009
                                       No. 08-10512
                                     Summary Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                    Plaintiff-Appellee

v.

LUIS ANTONIO MURILLO, also known as Delio

                                                    Defendant-Appellant


                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 3:98-CR-206-3


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Luis Antonio Murillo, a federal prisoner, appeals the denial of a motion in
which he sought to have his sentence reduced under 18 U.S.C. § 3582(c)(2) and
U.S.S.G. § 1B1.10(c) as a result of the adoption of Amendment 706 to the United
States Sentencing Guidelines. Amendment 706 applies to those whose sentences
were determined by calculating their guidelines offense levels in accordance with
the pertinent Guideline for crack cocaine.1

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           See U.S. v. Burns, 526 F.3d. 852, 861 (5th Cir. 2008).
                                         No. 08-10512

       Section 3582 permits a defendant to move, under certain circumstances,
for discretionary modification of his sentence if it was based on a sentencing
range that the Sentencing Commission later lowered, such as the Guideline for
crack cocaine.2 But Murillo’s total offense level was not based on the Guideline
for crack cocaine; it was instead based only on the quantity of powder cocaine
that was attributable to Murillo. Amendment 706 therefore does not apply to
Murillo. A defendant’s prison term is not subject to reduction on a § 3582(c)(2)
motion if a particular guidelines amendment, such as Amendment 706, does not
apply to the defendant.3 Thus, as the district court noted, Murillo “is not eligible
for a sentencing reduction.”4
       AFFIRMED.




       2
           Section 3582(c)(2); U.S. v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997).
       3
           See § 1B1.10, comment. (n.1(A)).
       4
          The district court accurately identified Murillo’s problem as the lack of statutory
basis for a federal court to entertain his motion and revisit his sentence. We construe this
judgment as being jurisdictional in nature and affirm on that basis. See U.S. v. Early, 27 F.3d
140, 142 (5th Cir. 1994).

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