     Case: 09-50483     Document: 00511039469          Page: 1    Date Filed: 03/02/2010




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

                                                  FILED
                                                                            March 2, 2010
                                     No. 09-50483
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

BYRON LAMONTE MCCUTCHEON,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:92-CR-26-5


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Byron Lamonte McCutcheon, federal prisoner #60246-080, was convicted
of conspiracy to possess with intent to distribute more than 50 grams of cocaine
base and possession with intent to distribute cocaine. He appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We
review the district court’s denial of a § 3582(c)(2) motion for abuse of discretion.
United States v. Doublin, 572 F.3d 235, 237 (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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
  Case: 09-50483    Document: 00511039469 Page: 2       Date Filed: 03/02/2010
                                No. 09-50483

      McCutcheon argues that the district court abused its discretion by denying
his § 3582(c)(2) motion. He maintains that the district court’s initial drug
quantity determination was not supported by sufficient evidence. He contends
that United States v. Booker, 543 U.S. 220 (2005), is applicable to § 3582(c)(2)
proceedings and that his sentence should be reduced because of the continuing
disparity between sentences for crack cocaine offenses and powder cocaine
offenses. He argues that the district court’s previous grant of a § 3582(c)(2)
sentence reduction to him should not have affected the resolution of his present
motion. He asserts that the district court violated his equal protection rights
because of the disparity between his sentence and the sentence of his co-
defendants.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence only where the defendant’s sentencing range is actually lowered by the
Sentencing Commission. See Doublin, 572 F.3d at 237. Because McCutcheon
was held accountable for more than 4.5 kilograms of cocaine base, Amendment
706 did not change his guidelines sentence range. See U.S.S.G. Supp. to App’x
C, Amend. 706; U.S.S.G. § 2D1.1(c)(1). Contrary to McCutcheon’s assertion,
Booker is not applicable in § 3582(c)(2) proceedings. See Doublin, 572 F.3d at
238. McCutcheon’s challenge to the initial drug quantity determination and his
equal protection claim are not cognizable in a § 3582(c)(2) proceeding. See
United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Because § 3582(c)(2)
authorizes a sentence reduction only when the sentencing range is lowered by
an amendment to the Guidelines, the district court did not abuse its discretion
by denying McCutcheon’s motion for reduction of sentence.
      AFFIRMED.




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