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

                                                                  FILED
                                                                October 2, 2008
                                No. 07-50837
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ALLAN SCOTT FISHER, also known as Alan Scott Fisher

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 6:06-CR-166-ALL


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Allan Scott Fisher appeals his jury conviction and sentence for possession
with intent to distribute at least five grams of cocaine base. He argues that his
sentence is unreasonable in view of the United States Sentencing Commission’s
retroactive amendment of U.S.S.G. § 2D1.1 reducing the base offense level for
cocaine base by two levels.
      Because Fisher did not challenge the reasonableness of his sentence or
argue that the then-pending Amendment 706 should be applied to his case in the

      *
      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should not be published and is not precedent except under the limited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. 07-50837

district court, review is limited to plain error. United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). Under the plain
error standard of review, “reversal is not required unless there is (1) an error;
(2) that is clear or plain; (3) that affects the defendant’s substantial rights; and
(4) that seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
      Fisher has not shown that his sentence was procedurally or substantively
unreasonable. He has not argued or shown that the district court erred in
calculating his guidelines sentencing range at the time of his original sentencing.
With a based offense level of 38 and a criminal history category of VI, the
applicable guidelines range was 360 months to life imprisonment. U.S.S.G.,
Ch. 5, Pt. A. His sentence of 360 months was at the low end of the guidelines
range and is entitled to a presumption of reasonableness. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Fisher has not argued or shown that
the district court failed to consider any specific 18 U.S.C. § 3553(a) factors or
that the district court failed to give adequate reasons for the sentence imposed.
Fisher has not shown that his sentence is unreasonable. See United States v.
Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).
      Fisher was sentenced on June 27, 2007, before Amendment 706 became
effective on November 1, 2007. U.S.S.G., App. C, amend. 706, at 226-31 (Supp.
Nov. 1, 2007). In December 2007, the Sentencing Commission determined that
the amendment would apply retroactively effective March 3, 2008, so that
defendants who were sentenced prior to the effective date of the amendment may
seek a reduced sentence pursuant to 18 U.S.C. § 3582(c). See U.S.S.G. App. C,
amend. 713, at 56 (Supp. Mar. 3, 2008). If Fisher wishes to seek a sentence
reduction based on the amendment, such relief should be pursued in the district
court in the first instance pursuant to § 3582(c)(2). See U.S.S.G. § 1B1.10. We
express no opinion on the viability of such relief as it pertains to Fisher.



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                                  No. 07-50837

      Fisher argues that the district court erred in refusing to give a jury
instruction concerning the lesser included offense of simple possession. The
evidence established that Fisher was involved in manufacturing and distributing
cocaine base. When arrested, Fisher turned over 4.84 grams of cocaine base he
had concealed in his rectum; officers also found $700 in cash on his person. In
a search of his car, officers also found a plastic bag full of marijuana; however,
they did not find any paraphernalia for smoking cocaine base. A search of a
trailer house that Fisher used as a stash house yielded a safe which contained
45.23 grams of cocaine base, valued at $3400 to $4000. Keys taken from Fisher
at the time of his arrest fit the lock of a safe found at the trailer. Thus, Fisher
possessed a distributable amount of cocaine base, approximately 50 grams, as
well as $700 in cash. See United States v. Munoz, 957 F.2d 171, 174 (5th Cir.
1992). The Government also presented evidence that Fisher purchased at least
ten kilograms of powder cocaine for $15,000 each and that he manufactured
cocaine base. Cocaine base residue was found in the trailer’s microwave oven,
as well as a Pyrex measuring cup and baking soda, items used to manufacture
cocaine base. In view of the amount of cocaine base involved in the offense and
Fisher’s possession of a large amount of cash, Fisher has not shown that the
district court abused its discretion in refusing to give a jury instruction on the
lesser included offense of simple possession. See United States v. Finley, 477
F.3d 250, 256 (5th Cir. 2007).
      AFFIRMED.




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