     Case: 08-10600 Document: 00511307362 Page: 1 Date Filed: 11/30/2010




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

                                                 FILED
                                                                         November 30, 2010
                                     No. 08-10600
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GEORGE GIRARD JOHNSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:04-CR-41-2


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       George Girard Johnson, federal prisoner # 32988-177, pleaded guilty to
conspiracy to distribute, possess with intent to distribute, and manufacture 50
grams or more of cocaine base. The district court sentenced Johnson to 235
months of imprisonment, a sentence below the guidelines sentence range, based
upon a joint request by Johnson and the Government. He appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 08-10600 Document: 00511307362 Page: 2 Date Filed: 11/30/2010

                                    No. 08-10600

      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission.     See § 3582(c)(2).    We review the district court’s denial of a
§ 3582(c)(2) motion for abuse of discretion. United States v. Doublin, 572 F.3d
235, 237 (5th Cir. 2009).
      Johnson argues that the district court abused its discretion by denying his
§ 3582(c)(2) motion simply because his sentence was within the amended
guidelines range. He maintains that he should have received a sentence 10%
below the amended guidelines range because his sentence was approximately
10% below the original guidelines range and that the district court should have
considered the continuing discrepancy between crack and power cocaine
sentences as noted by the Supreme Court in Kimbrough v. United States, 552
U.S. 85 (2007). Johnson further maintains that United States v. Booker, 543
U.S. 220 (2005), applies to § 3582(c)(2) proceedings and that the district court
erred by considering the Guidelines to be mandatory.
      Because Johnson was sentenced shortly after the opinion in Booker was
issued, the probation officer prepared two different guidelines sentence range
calculations.   The original calculations were prepared normally, but the
supplemental calculations considered only conduct that Johnson had admitted.
At sentencing, the district court did not clearly indicate which guidelines
sentence range calculations that it had adopted. Johnson has not shown that the
district court abused its discretion by denying his § 3582(c)(2) motion whether
the district court adopted the original or supplemental guidelines sentence range
calculations.
      In the presentence report, the probation officer found that Johnson was
responsible for over 4.5 kilograms of cocaine base, and this figure was reflected
in the original guidelines sentence range calculations. Thus, if the district court
adopted the original guidelines sentence range calculations, Johnson was



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                                No. 08-10600

ineligible for a sentence reduction because Amendment 706 did not lower his
offense level. See Amend. 706; § 2D1.1(c)(1).
      In his factual resume, Johnson admitted that he was responsible for 1.5
kilograms of cocaine base.     This is the drug quantity upon which the
supplemental guidelines sentence range calculations were based. Under these
calculations, Johnson’s sentence of 235 months of imprisonment falls within the
amended guidelines sentence range. In denying Johnson’s § 3582(c)(2) motion,
the district court acknowledged that Johnson’s sentence was within the amended
guidelines range, and it specifically ruled that Johnson’s sentence was
appropriate based upon the 18 U.S.C. § 3553(a) sentencing factors. Given these
circumstances, Johnson has not shown that the district court abused its
discretion by denying his § 3582(c)(2) motion. See United States v. Cooley, 590
F.3d 293, 297 (5th Cir. 2009). Contrary to Johnson’s assertion, Booker is not
applicable in § 3582(c)(2) proceedings. See Doublin, 572 F.3d at 237-39.
      AFFIRMED.




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