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

                                                 FILED
                                                                         September 2, 2009
                                     No. 08-50313
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

TERRENCE DOYLE MITCHELL

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:04-CR-203-1


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
       Terrence Doyle Mitchell, federal prisoner # 04106-180, appeals the district
court’s order denying his motion to modify his sentence pursuant to 18 U.S.C.
§ 3582(c). Mitchell pleaded guilty to possession with intent to distribute 500
grams or more of cocaine and possession of counterfeit currency.
       Mitchell argues that he is entitled to have his sentence reduced pursuant
to Amendment 709, which addressed two areas of the Guidelines’ criminal
history rules. Mitchell concedes that the amendment went into effect after he

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-50313

was 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. Mitchell
notes that Amendment 717 to the Guidelines recognizes that Booker rendered
the Guidelines advisory.
      We review the district court’s denial of Mitchell’s § 3582(c) motion for
abuse of discretion. See United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).
Amendment 709, on which Mitchell 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.”
See United States v. Doublin, ___ F. 3d ___, 2009 WL 1743661 (5th Cir. June 22,
2009). The district court’s judgment is affirmed.
      Mitchell also asks this court to recall the mandate in appeal no. 05-50203
and to remand the case to the district court for an evidentiary hearing on his
claim that counsel’s alleged ineffective assistance caused the dismissal of his
direct appeal for want of prosecution. Mitchell’s request for a recall of the
mandate is beyond the scope of relief provided for under § 3582, and, in fact,
Mitchell expressly states that he is not seeking a recall of the mandate pursuant
to § 3582. While this court may recall a mandate to prevent injustice, see 5 TH
C IR. R. 41.2, Mitchell’s request for such relief has not been properly presented
in the form of a motion to this court. See 5th Cir. R. 27. Accordingly, we do not
entertain in this appeal Mitchell’s request for a recall of the mandate.
      AFFIRMED.



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