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

                                                                  FILED
                                                                February 3, 2009
                               No. 08-10359
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

FREDRICK MOORE
                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 4:06-CR-78-ALL


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
      Fredrick Moore, federal prisoner # 35475-177, pleaded guilty to one count
of distribution of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C). He appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction of his sentence.
      “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.”


      *
      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should not be published and is not precedent except under the limited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. 08-10359

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).
      Moore based his motion on the United States Sentencing Commission’s
adoption of Amendment 706, which modified 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)). Moore argues that the sentencing court
erred in sentencing him as a career offender under U.S.S.G. § 4B1.1 and that in
the light of Amendment 706, he was eligible for a reduction in his sentence.
      Moore has not shown that the district court abused its discretion in
denying his motion to reduce his sentence. A reduction in Moore’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
§ 4B1.1. Because Moore’s guidelines range of imprisonment was not derived
from the quantity of crack cocaine involved in the offense, Moore was not
sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission. See § 3582(c)(2). To the extent that Moore 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 was not “based on 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 Moore’s motion for a
reduction of sentence.
      AFFIRMED.




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