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

                                                 FILED
                                                                             May 1, 2009
                                     No. 08-50566
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

ROY LEE JONES,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 1:03-CR-191-ALL




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Roy Jones, federal prisoner # 39810-180, pleaded guilty of being a felon in
possession of a firearm and possession with intent to distribute 50 grams or

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50566

more of cocaine base. See 18 U.S.C. §§ 841, 922(g)(1). He was sentenced as a
career offender pursuant to U.S.S.G. § 4B1.1. He appeals the denial of his 18
U.S.C. § 3582(c)(2) motion for reduction of sentence, basing his appeal on the
Sentencing Commission’s adoption of Amendment 706, which modified the sen-
tencing ranges applicable to crack cocaine offenses to reduce the disparity be-
tween crack cocaine and powder cocaine sentences. See U.S. S ENTENCING G UIDE-
LINES M ANUAL, supp. to   app. C, amend. 706, at. 226-31 (Nov. 1, 2007) (amending
U.S.S.G. § 2D1.1(c)).
      “Section 3582(c)(2) permits a district court to reduce a term of imprison-
ment when it is based upon a sentencing range that has subsequently been low-
ered by an amendment to the Guidelines, if such a reduction is consistent with
the policy statements issued by the Sentencing Commission.” 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, so we review the denial of
a § 3582 motion for abuse of discretion. United States v. Boe, 117 F.3d 830, 831
(5th Cir. 1997).
      Jones argues that under Rita v. United States, 551 U.S. 338 (2007), United
States v. Booker, 543 U.S. 220 (2005), Gall v. United States, 128 S. Ct. 586
(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), the court has dis-
cretion to lower his sentence, because his career offender enhancement was “acti-
vated” by the crack cocaine guideline. Jones contends that his career-offender-
guideline sentence should be reexamined for a determination whether, after the
amendment, it is not greater than necessary to satisfy the purposes of sentenc-
ing as provided in 18 U.S.C. § 3553. He avers that the district court erred in en-
forcing the career-offender-guideline sentencing range as mandatory rather than
advisory, in violation of Booker.
      Jones has not shown that the district court abused its discretion in deny-
ing his motion for a reduction of sentence. Because the guideline range was de-
rived from his status as a career offender and not the quantity of crack cocaine

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                                 No. 08-50566

involved in the offense, Jones was not sentenced based on a sentencing range
that was subsequently lowered by the Sentencing Commission. See § 3582(c)(2).
Further, to the extent Jones argues that the district court had discretion to re-
duce his sentence under § 3582(c)(2) in light of Booker and Kimbrough, the argu-
ment is unavailing, because those decisions were not “based on a retroactive
amendment to the Guidelines.” See United States v. Shaw, 30 F.3d 26, 29 (5th
Cir. 1994) (Booker); Kimbrough, 128 S. Ct. at 564. Rita and Gall are likewise in-
apposite. The district court did not abuse its discretion in denying a reduction.
Jones’s motion to transcribe the computer disk provided by the government with
its brief is DENIED.
      AFFIRMED.




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