     Case: 08-10400 Document: 00511319780 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010
                                     No. 08-10400
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

CHRISTOPHER THOMPSON

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                            USDC No. 3:03-CR-382-ALL


Before HIGGINBOTHAM, SMITH, and PRADO, Circuit Judges.
PER CURIAM:1
       Christopher Thompson, federal prisoner # 31221-177, appeals the district
court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Thompson contends he is eligible for a sentence reduction based on Amendment
706 to the United States Sentencing Guidelines. Amendment 706 lowers
Thompson’s offense level, but it does not lower his recommended sentencing
range. Therefore, we affirm the district court’s denial of his § 3582(c)(2) motion.



       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10400 Document: 00511319780 Page: 2 Date Filed: 12/13/2010

                                      No. 08-10400

       A jury convicted Thompson of four offenses: (1) possession of a firearm as
a felon, (2) possession of a firearm within a school zone, (3) possession with
intent to distribute fifty or more grams of cocaine base (“crack”), and (4)
possession with intent to distribute fifty or more grams of crack within a school
zone. At sentencing, the district court determined that Thompson was a career
offender. The career-offender provision of the Sentencing Guidelines, § 4B1.1(b),
provided that Thompson’s offense level was 37 unless the otherwise-applicable
base offense level was higher. It was—under the crack-cocaine provisions of the
Guidelines in effect at the time, §§ 2D1.1 & 2D1.2, Thompson’s adjusted offense
level was 38. The district court applied the higher offense level of 38 which,
combined with Thompson’s criminal-history score, produced a recommended a
sentencing range of 360 months to life. The district court varied downwardly
and sentenced Thompson to 324 months in prison.2
       Thompson filed a motion for reduction of sentence pursuant to 18 U .S.C.
§ 3582(c)(2). “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.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997) (per
curiam). Thompson seeks a reduction in his sentence based on Amendment 706
to the Sentencing Guidelines.            Amendment 706, which the Sentencing
Commission made retroactive, reduced the base offense levels for crack-cocaine
offenses. United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). In general,
Amendment 706 adjusts downward by two levels the base offense level for-crack
cocaine offenses under § 2D1.1 of the Guidelines. See id.



       2
         Thompson also received a sixty-month sentence for one of his firearms offenses and
a 120-month sentence for the other one. The district court ordered that Thompson serve those
sentences concurrently with the sentence for his crack-cocaine offenses, and Thompson does
not challenge either of his firearms sentences on this appeal.

                                             2
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                                 No. 08-10400

      The district court denied Thompson’s motion because it concluded that he
was sentenced as a career offender and was therefore ineligible for a reduction
in his sentence. We review de novo a district court’s authority to reduce a
sentence pursuant to § 3582(c)(2), United States v. Jones, 596 F.3d 273, 276 (5th
Cir.), cert. denied, __ S. Ct. __, 2010 WL 1848457 (Oct. 4, 2010), and we review
for an abuse of discretion a district court’s discretionary decision to deny a
§ 3582(c)(2) motion, United States v. Anderson, 591 F.3d 789, 790 n.6 (5th Cir.
2009).
      By its terms, § 3582(c)(2) allows a district court to reduce a defendant’s
sentence only if the defendant’s “sentencing range” has subsequently been
lowered by an amendment to the Guidelines. Without more, the fact that a
defendant’s base or adjusted offense level has been reduced is not enough to
entitle that defendant to a sentence reduction under § 3582(c)(2).        If the
defendant’s recommended sentencing range remains the same even though his
offense level has been lowered, he is not eligible for resentencing. See U.S.
S ENTENCING G UIDELINES M ANUAL § 1B.1.10 cmt. n.1 (2010).
      Thompson thus finds himself ineligible for resentencing. Thompson’s
adjusted offense level of 38 under § 2D1.1 was subject to a two-level reduction
under Amendment 706. See Jones, 596 F.3d at 276-77. But Thompson was
sentenced as a career offender under § 4B1.1. Thompson’s adjusted offense level
was determined under § 2D1.1 instead of § 4B1.1 only because the adjusted
offense level under § 2D1.1 was higher. See U.S. S ENTENCING G UIDELINES
M ANUAL § 4B1.1(b) (2010).     Amendment 706 did not change the fact that
§ 4B1.1(b)(A) sets Thompson’s offense level at 37. Consequently, the newly
lowered offense level of 36 under § 2D1.1 does not apply to Thompson because
it is not greater than the offense level of 37 that is otherwise applicable under
§ 4B1.1. See id.
      The effect of Amendment 706 was to reduce Thompson’s offense level not
from 38 to 36, but from 38 to 37. For a defendant such as Thompson whose

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                                    No. 08-10400

criminal-history category is VI, the recommended sentencing range for an
offense level of 37 is the same as it is for an offense level of 38. See id. ch. 5, pt.
A. (Sentencing Table).      Either way, the Guidelines recommends a term of
imprisonment of 360 months to life.
      Because Thompson’s Guidelines imprisonment range has not been
lowered, the district court did not err in determining that it lacked authority
under § 3582(c)(2) to lower Thompson’s sentence, and its denial of Thompson’s
motion was not an abuse of discretion. We affirm the district court’s order
denying Thompson’s motion for a sentencing reduction.
      As Thompson has not shown that the interest of justice requires
appointment of counsel in this case, his motion for appointment of counsel is
denied. See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008);
United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).
      AFFIRMED; MOTION DENIED




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