     Case: 10-10763 Document: 00511379611 Page: 1 Date Filed: 02/11/2011




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

                                                 FILED
                                                                          February 11, 2011
                                     No. 10-10763
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KENNETH A. JONES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:94-CR-147-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Kenneth A. Jones, federal prisoner # 26216-077, appeals the district
court’s denial of his 18 U.S.C. § 3582 motion to reduce his 310-month sentence
imposed following his guilty plea conviction for conspiracy to possess with intent
to distribute methamphetamine. Jones argues that the policy statement in
U.S.S.G. 1B1.10, p.s., that only the amendments listed in § 1B1.10(c) may be
applied retroactively is contrary to the holding in United States v. Booker, 543
U.S. 220 (2005), and that the district court’s decision to apply amendments is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10763 Document: 00511379611 Page: 2 Date Filed: 02/11/2011

                                   No. 10-10763

now discretionary. He contends that § 1B1.10 and § 3582 are unconstitutional
insofar as they apply a mandatory sentencing scheme.
      Section 3582(c)(2) permits the discretionary reduction of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied,
130 S. Ct. 517 (2009).     However, it applies only to retroactive guidelines
amendments, as set forth in the guidelines policy statement. See § 1B1.10(a),
p.s.; United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994). The district court’s
interpretation or application of the Guidelines is reviewed de novo while its
decision whether to reduce a sentence is reviewed for an abuse of discretion.
Doublin, 572 F.3d at 237. Amendment 709 is not listed as an amendment
covered by the policy statement in § 1B1.10(c). See § 1B1.10(c). Thus, the
district court was not authorized to reduce a sentence based on Amendment 709.
See § 1B1.10, comment. (n.1(A)).
      Insofar as Jones relies on Booker, the Supreme Court and this court have
determined that Booker does not apply to sentencing reductions under § 3582
and that it does not alter the mandatory character of § 1B1.10’s limitations on
sentence reductions. Dillon v. United States, 130 S. Ct. 2683, 2692 (2010);
Doublin, 572 F. 3d at 238. Thus, Jones’s argument that the district court was
not bound by the policy statement in light of Booker has no merit.
      Jones also argues that the Supreme Court recognized in Rita v. United
States, 551 U.S. 338 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007),
that the district court may depart from the Guidelines. These Supreme Court
cases did not hold that the district court may depart from the guidelines range
although the guideline amendment relied upon by the movant is not listed in
§ 1B1.10(c).   The limitations in § 1B1.10 are mandatory and, thus, would
preclude such a departure. Doublin, 572 F.3d at 237-38.
      The district court did not err in denying the motion to reduce Jones’s
sentence. The sentence is AFFIRMED.

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