     Case: 08-41267     Document: 00511084673          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 08-41267
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DOUGLAS JOHNSON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:01-CR-166-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Douglas Johnson, federal prisoner # 09173-078, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based
Amendment 706 to the cocaine base (crack cocaine) Sentencing Guidelines.
Johnson pleaded guilty to possession with intent to distribute five grams or more
of crack cocaine in violation of 21 U.S.C. § 841(a)(1), but he was sentenced as a
career offender under U.S.S.G. § 4B1.1.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 08-41267

      The court has the discretion to reduce a 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 . . . if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” § 3582(c)(2). “The crack
cocaine guideline amendments do not apply to prisoners sentenced as career
offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).
      Johnson asserts that, although he was designated as a career offender, the
district court downwardly departed so that he was “ultimately” sentenced based
on the crack cocaine guidelines and, thus, he is eligible for a § 3582(c)(2)
reduction. This assertion is wholly unsupported by the record. The district
court did not downwardly depart to a sentence within the crack cocaine
guidelines range, and there is no indication in the record that the district court
based its departure sentence on this otherwise applicable range.
      Although the district court departed from the career offender guidelines
range, Johnson’s guidelines range was derived from his career offender status
and not from the quantity of crack cocaine involved in the offense. Accordingly,
he was not sentenced “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” § 3582(c)(2). Thus, he was ineligible
for a § 3582(c)(2) sentence reduction. See Anderson, 591 F.3d at 791. The
district court did not err or otherwise abuse its discretion in denying Johnson’s
motion for a sentence reduction. See United States v. Doublin, 572 F.3d 235, 237
(5th Cir.), cert. denied, 130 S. Ct. 517 (2009).
      To the extent Johnson argues that the application of U.S.S.G. § 1B1.10 is
not mandatory, this argument is foreclosed. See id. at 238. Because the district
court simply denied the motion and did not consider any sentence reduction, we
do not address Johnson’s arguments that the district court erred in not
considering the full panoply of the 18 U.S.C. § 3553(a) factors in determining his



                                         2
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                                No. 08-41267

new, reduced sentence in light of Kimbrough v. United States, 552 U.S. 85
(2007), and United States v. Booker, 543 U.S. 220 (2005).
      AFFIRMED.




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