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

                                                 FILED
                                                                         December 21, 2009
                                     No. 08-10654
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARCUS LYNN FOSTER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:03-CR-46-5


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
       Marcus Lynn Foster, federal prisoner # 30525-177, filed a motion for a
reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). He sought a sentence
reduction based on Amendment 706 to the Federal Sentencing Guidelines, which
reduced the base offense level for most crack cocaine offenses. See United States
v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). Foster appeals the district court’s
denial of that motion. Foster argues that the district court erred by determining



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
that because the crack cocaine amendments did not lower his guidelines range,
he was ineligible for a sentence reduction under § 3582(c)(2).
      Foster’s argument is premised, in part, upon his assertion that the
prohibition set forth in United States v. Booker, 543 U.S. 220 (2005), against the
mandatory application of the Guidelines applies in § 3582(c)(2) proceedings.
This court determined in United States v. Doublin, 572 F.3d 235, 238 (5th Cir.
2009), cert. denied, 2009 WL 3073270 (Nov. 2, 2009) (No. 09-6657), that “the
concerns at issue in Booker do not apply in a 18 U.S.C. § 3582(c)(2) proceeding.”
Also, “Booker does not alter the mandatory character of Guideline § 1B1.10’s
limitations on sentence reductions.”        Id.   One such limitation is that a
§ 3582(c)(2) reduction is not authorized if an amendment “does not have the
effect of lowering the defendant’s applicable guideline range.”          U.S.S.G.
§ 1B1.10(a)(2)(B). In Foster’s case, the amended guidelines yielded the same
sentencing range that was used when Foster was originally sentenced. The
district court therefore did not err in denying Foster’s motion. See Doublin, 572
F.3d at 237; § 3582(c)(2); § 1B1.10(a)(2)(B).
      AFFIRMED.




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