     Case: 12-10024     Document: 00511896576         Page: 1     Date Filed: 06/22/2012




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

                                                                            FILED
                                                                           June 22, 2012
                                     No. 12-10024
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHNNY BERNARD VAUGHN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:00-CR-73-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Johnny Bernard Vaughn, federal prisoner # 25787-177, appeals the denial
of his 18 U.S.C. § 3582(c)(2) motion. Vaughn, convicted of possession with intent
to distribute cocaine base, argued in that motion that he was entitled to a
reduction in sentence pursuant to Amendment 750 to the United States
Sentencing Guidelines. Reviewing the district court’s interpretation of the
Guidelines de novo, we affirm. See United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                       No. 12-10024

      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” § 3582(c)(2); see
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). In 2008 Vaughn had
successfully argued that he was entitled to a § 3582(c)(2) reduction pursuant to
Amendment 706.
      Our review of the entire record, including the original sentencing and the
prior § 3582(c)(2) motion, establishes that on § 3582(c)(2) review, the career
offender offense level under § 4B1.1 was greater than the amended cocaine base
level under § 2D1.1. As such, Vaughn was entitled only to a reduction within the
career offender range. See United States v. Jones, 596 F.3d 273, 276-77 (5th
Cir.), cert. denied, 131 S. Ct. 93 (2010); see also § 1B1.10(b)(1). Application of the
career offender Guideline for purposes of the instant motion resulted in the same
guideline range applicable in Vaughn’s earlier § 3582(c)(2) proceeding. See
U.S.S.G., Ch. 5, Pt. A (Sentencing Table). Consequently, Vaughn was ineligible
for a reduction in sentence based on Amendment 750 because the amendment
did not have the effect of lowering the applicable guideline range.                  See
§ 1B1.10(a).
      To the extent that Vaughn argues in his reply brief that he should not
have received a two-level enhancement for possessing a firearm, that issue is
waived. See United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
Finally, to the extent Vaughn argues that the district court otherwise had the
discretion to resentence him to a lesser sentence, § 3582(c)(2) proceedings are not
full resentencings. Dillon v. United States, 130 S. Ct. 2683, 2690-94 (2010). The
principles of Booker1 and its progeny do not apply to § 3582(c)(2) proceedings,




      1
          United States v. Booker, 543 U.S. 220 (2005).

                                              2
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                                No. 12-10024

and a sentencing court lacks discretion to reduce the sentence any further than
the reduction allowed under § 1B1.10. Id.; Doublin, 572 F.3d at 238.
      AFFIRMED.




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