     Case: 08-10986     Document: 00511052716         Page: 1     Date Filed: 03/16/2010




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

                                                  FILED
                                                                          March 16, 2010
                                     No. 08-10986
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

HUBBARD BELL, JR., also known as Hub,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:88-CR-99-10


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Hubbard Bell, federal prisoner # 18370-077, filed a motion for a reduced
sentence pursuant to 18 U.S.C. § 3582(c)(2) in which he sought a two-level
reduction in his offense level based on Amendment 706 to the crack cocaine
Guidelines. Bell appeals the district court’s denial of that motion.
        Although the district court’s decision whether to reduce a sentence
ordinarily is reviewed for an abuse of discretion, a court’s interpretation of the
Guidelines is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th

        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 08-10986    Document: 00511052716 Page: 2        Date Filed: 03/16/2010
                                 No. 08-10986

Cir. 2009). Because the district court’s denial of Bell’s motion was based on its
determination that it could not reduce Bell’s sentence due to his career offender
status under the Guidelines, review is de novo. See id.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission, 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). Sentence reductions under § 3582 are thus “governed”
by the policy statements of the Guidelines. Doublin, 572 F.3d at 237.
      Bell’s guideline range was not derived from the quantity of crack cocaine
involved in the offense, but rather from his career offender status. The district
court was thus correct in concluding that a reduction was not permitted under
§ 3582(c)(2). See § 3582(c)(2). Bell’s argument that the district court had the
discretion to reduce his sentence under § 3582 in light of United States v. Booker,
543 U.S. 220 (2005), is unavailing because “the concerns at issue in Booker do
not apply in a [] § 3582(c)(2) proceeding.” Doublin, 572 F.3d at 238. Although
the Guidelines must be treated as advisory in an original sentencing proceeding,
Booker does not prevent Congress from incorporating a Guideline provision “as
a means of defining and limiting a district court’s authority to reduce a sentence
under § 3582(c).” Id. at 239 (internal quotation marks and citation omitted).
      The district court also did not err in declining to reopen Bell’s original 28
U.S.C. § 2255 proceeding under Fed. R. Civ. P. 60(b)(6) to allow him to litigate
his claim that he was improperly sentenced as a career offender. A Rule 60(b)
motion filed in a collateral proceeding should be construed as a successive § 2255
motion, even where the motion seeks to raise a claim based on a change in the
law. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (§ 2254 case); see also
United States v. Rich, 141 F.3d 550, 551-53 (5th Cir. 1998) (noting that federal
prisoner’s Rule 60(b) motion, which raised for the first time a theory of relief



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                               No. 08-10986

based on the assertion that a Supreme Court decision changed the law, should
be construed as a successive § 2255 motion).
      AFFIRMED.




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