     Case: 09-40631 Document: 00511279226 Page: 1 Date Filed: 10/29/2010




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

                                                  FILED
                                                                          October 29, 2010
                                     No. 09-40631
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RODRICK CHAD RUSSELL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:07-CR-180-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Rodrick Chad Russell, federal prisoner # 13708-078, appeals the district
court’s denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his
sentence for possession with intent to distribute five grams or more of cocaine
base.       The Government has moved for summary affirmance or, in the
alternative, for an extension of time to file a brief.
        Russell argues that the district court abused its discretion in failing to
reduce his sentence by two levels under the November 1, 2007, crack cocaine

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40631 Document: 00511279226 Page: 2 Date Filed: 10/29/2010

                                 No. 09-40631

amendments to the Sentencing Guidelines, including Amendment 706.
However, Russell was sentenced pursuant to Amendments 706 and 711, both of
which became effective on November 1, 2007, before his sentencing.
Additionally, to the extent that Russell’s argument is liberally construed to
contend that his sentence should be reduced under Amendment 715, which
became effective on November 1, 2008, the application of the amendment would
not have affected his guidelines range, and thus he is not entitled to a sentence
reduction pursuant to § 3582(c)(2) on this basis. See United States v. Doublin,
572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); U.S.S.G.
§ 1B1.10(a), p.s.
      Liberally construed, Russell’s brief also argues that the drug quantity for
which he was held accountable and the two-level increase in his offense level
pursuant to U.S.S.G. § 2D1.1(b)(1) were erroneously based on charges that were
later dismissed and were calculated in violation of United States v. Booker, 543
U.S. 220 (2005), based on facts that were not charged in the indictment.
However, a motion under § 3582(c)(2) “is not a second opportunity to present
mitigating factors to the sentencing judge, nor is it a challenge to the
appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995). Furthermore, this court has recognized that Booker
did not alter the mandatory character of § 1B1.10’s limitations on sentence
reductions. See Doublin, 572 F.3d at 238. Therefore, these claims are not
cognizable in a § 3582(c)(2) motion. See Whitebird, 55 F.3d at 1011; United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462
(2010).
       In light of the foregoing, Russell has not shown that the district court
abused its discretion in denying his § 3582(c)(2) motion. See Evans, 587 F.3d at
672. The motion for summary affirmance is GRANTED, the judgment of the
district court is AFFIRMED, and the Government’s alternative motion for an
extension of time is DENIED as unnecessary.

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