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

                                                FILED
                                                                October 20, 2009
                                No. 08-41303
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MICHAEL ANTHONY CORBIN

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:06-CR-127-1


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Michael Anthony Corbin appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based upon Amendment 706 to the
Guidelines, which lowered the sentencing ranges for offenses involving crack
cocaine. Corbin is serving a 70-month sentence following his guilty plea to
conspiracy to distribute and possess with intent to distribute less than 500




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-41303

grams of cocaine hydrochloride and possession with the intent to distribute more
than five grams but less than 50 grams of cocaine base.
      Section 3582 permits a defendant to move, under certain circumstances,
for discretionary modification of his sentence if it was based on a sentencing
range that the Sentencing Commission later lowered. See § 3582(c)(2); United
States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). We review the
denial of a § 3582 motion for abuse of discretion. See United States v. Boe, 117
F.3d 830, 831 (5th Cir. 1997).
      Corbin contends that because his sentence was derived from the amount
of crack cocaine involved, he was eligible for the two-level reduction in his base
offense level. The Government has filed a motion for summary affirmance or,
alternatively, for an extension of time within which to file a brief.
      Converting all of the drugs that Corbin was found responsible for, save the
crack cocaine, yields a marijuana equivalency of 114.48 kilograms. See U.S.S.G.
§ 2D1.1, comment. (n.10(D)(ii)(II)). This amount results in the same base offense
level as Corbin’s original base offense level, which was 26. See § 2D1.1(c)(7) (a
level 26 applies to amounts of more than 100 kilograms but less than 400
kilograms of marijuana). After deducting three levels for Corbin’s acceptance of
responsibility, the amended total offense level is the same as the original total
offense level, 23. With a criminal history category of IV, Corbin’s amended
guidelines range remains 70 to 87 months in prison. Because Corbin’s offense
level and his guidelines sentence range were not lowered by Amendment 706, he
was not eligible for a sentence reduction pursuant to U.S.S.G. § 1B1.10(a)(2)(B).
See Gonzalez-Balderas, 105 F.3d at 982.
      To the extent that Corbin challenges the original drug quantity calculation
and the use of the drug conversion tables, these challenges are not cognizable
under § 3582(c)(2) because they are not based on a retroactive amendment to the
Guidelines. See United States v. Shaw , 30 F.3d 26, 29 (5th Cir. 1994).



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                                  No. 08-41303

      Corbin also argues that the district court had the authority in light of
United States v. Booker, 543 U.S. 220 (2005), and its progeny to reduce his
sentence notwithstanding the contrary policy statement set out in § 1B1.10. We
recently rejected materially indistinguishable arguments in United States v.
Doublin, 572 F.3d 235, 236-39 (5th Cir. 2009), petition for cert. filed (Sept. 21,
2009) (No. 09-6657).
      The Government’s motion for summary affirmance is GRANTED, the
Government’s motion for an extension of time is DENIED, and the judgment of
the district court is AFFIRMED.




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