     Case: 10-30743     Document: 00511669371         Page: 1     Date Filed: 11/17/2011




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

                                                                            FILED
                                                                        November 17, 2011
                                       No. 10-30743
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

KENNETH WAYNE PEARSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 1:01-CR-10012-3


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
        Kenneth Wayne Pearson appeals the district court’s denial of his 18 U.S.C.
§ 3582(c) motion to reduce his sentence following amendments to the crack
cocaine Guidelines. This court reviews a district court’s denial of a § 3582(c)(2)
motion for abuse of discretion, its interpretation of the Guidelines de novo, and
its factual findings for clear error. United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011). “A district court abuses its discretion if it bases its decision




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-30743

on an error of law or a clearly erroneous assessment of the evidence.” Id.
(internal quotation marks omitted).
      “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). The
policy statement provided in U.S.S.G. § 1B1.10(a)(1) authorizes a district court
to reduce a sentence under § 3582(c)(2) if the defendant is serving a term of
imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the Guidelines listed
in § 1B1.10(c). U.S.S.G. § 1B1.10(a)(1), p.s.; see also § 1B1.10, cmmt. n.1(A).
      After Pearson was resentenced following remand pursuant to United
States v. Booker, 543 U.S. 220 (2005), the Guidelines were amended to decrease
by two levels the base offense levels for crack cocaine offenses such as Pearson’s.
See U.S.S.G. Supp. to App’x C, Amends. 706, 711; United States v. Burns, 526
F.3d 852, 861 (5th Cir. 2008).      The Guidelines policy statement provides,
however, that “if the original term of imprisonment constituted a non-guideline
sentence determined pursuant to 18 U.S.C. § 3553(a) and [Booker], a further
reduction generally would not be appropriate.” U.S.S.G. § 1B1.10(b)(2)(B), p.s.
      Post-Booker, this court recognizes three types of sentences: (1) sentences
within a properly calculated guidelines range; (2) sentences that an include an
upward or downward departure as allowed by the Guidelines; and (3) non-
guidelines sentences that are either higher or lower than the relevant guidelines
sentence.   United States v. Smith, 440 F.3d 704, 706–07 (5th Cir. 2006).
Pearson’s argument that his 188-month sentence of imprisonment was a
guidelines sentence and not the result of a departure is unavailing. When
resentencing Pearson on remand, the district court declined to alter Pearson’s
offense level, and instead selected a guidelines range of imprisonment it deemed

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                                 No. 10-30743

appropriate. The district court made no reference to the Guidelines’ provisions
for departure. As such, it imposed a non-guidelines sentence. See United States
v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006) (treating downward
deviation as a non-guidelines sentence because the district court made no
reference to departing from the Guidelines or to the Guidelines’ provisions for
departure); Smith, 440 F.3d at 707–08 & 708 n.3 (district court properly imposed
non-guidelines sentence when it calculated defendant’s guidelines range of
imprisonment, used that range as a reference, and made an upward deviation
without making an upward departure within the Guidelines).
      Because Pearson’s original sentence was a non-guidelines sentence,
imposed after a Booker remand, under the Guidelines policy statement no
further reduction was warranted. See Gonzalez-Balderas, 105 F.3d at 982;
U.S.S.G. § 1B1.10(b)(2)(B), p.s. Therefore, the district court did not abuse its
discretion when it denied Pearson’s § 3582(c)(2) motion. See Henderson, 636
F.3d at 717.
                                                                   AFFIRMED.




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