                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 22, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-60738
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RODNEY DAVENPORT, also known as Fella,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                      USDC No. 4:93-CR-21
                      --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Rodney Davenport, federal prisoner # 09803-042, was

convicted of conspiracy to distribute and possess with intent to

distribute cocaine and cocaine base and was sentenced to 292

months of imprisonment and five years of supervised release.

Davenport appeals the district court’s denial of his motion for

modification of sentence pursuant to 18 U.S.C. § 3582(c)(2).

Davenport argues that his base offense level should be reduced

under Amendment 505 to the Sentencing Guidelines.   Section

3582(c)(2) authorizes a reduction in the term of imprisonment

     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-60738
                                 -2-

imposed when a sentencing range subsequently has been lowered by

the Sentencing Commission and the amendment has been made

retroactive.    Amendment 505 applies retroactively.   U.S.S.G.

§ 1B1.10(c).

     Applying Amendment 505, which reduces the base offense level

based on quantity of drugs to 38, the district court found that

Davenport’s total offense level would be 38 and that his sentence

was within the applicable guidelines range of 235-293 months of

imprisonment.    The district court erroneously concluded that

Davenport originally was sentenced at a base offense level of 42

but had received a downward departure.     See United States v.

Mimms, 43 F.3d 217, 220–21 (5th Cir. 1995).    The record

establishes that at sentencing the district court sustained

Davenport’s objection to the two-level upward adjustment for

obstruction of justice that was recommended in the PSR.     Given

the two-level downward adjustment Davenport received for playing

a minor role in the offense, Davenport was sentenced at level 40,

and his 292-month sentence was within the applicable guidelines

range.

     In retroactively applying Amendment 505, the base offense

level of 38 should have been reduced by two levels for the minor

participant adjustment that Davenport received.    Given

Davenport’s criminal history category of I and the applicable

offense level of 36, the applicable guidelines range is 188-235

months of imprisonment.    Because Davenport’s sentence exceeds
                          No. 05-60738
                               -3-

this range, we vacate the decision of the district court and

remand for further proceedings in accordance with this opinion.

See United States v. Mueller, 168 F.3d 186, 187–88 (5th Cir.

1999).

     Davenport’s motion for leave to file a reply brief is

denied.

     VACATED AND REMANDED; MOTION DENIED.
