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

                                                                   FILED
                                                                 January 21, 2009
                                No. 08-20256
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee
v.

RODERICK ANTHONY RICE
                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:96-CR-27-1


Before HIGGINBOTHAM, BARKSDALE and ELROD, Circuit Judges.
PER CURIAM:*
      Roderick Anthony Rice, federal prisoner # 70997-079, pleaded guilty to
conspiracy to possess cocaine base with intent to distribute in violation of 21
U.S.C. § 846. He appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction of his sentence. Rice based his motion on the United
States Sentencing Commission’s adoption of Amendment 706, which modified
the sentencing ranges applicable to crack cocaine offenses to reduce the disparity
between crack cocaine and powder cocaine sentences.           See United States



      *
      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should not be published and is not precedent except under the limited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. 08-20256

Sentencing Commission, Guidelines Manual, Supp. to Appendix C, Amendment
706, p. 226-31 (Nov. 1, 2007) (amending U.S.S.G. § 2D1.1(c)).
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The
decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and we
review the denial of a § 3582 motion for abuse of discretion. United States v.
Boe, 117 F.3d 830, 831 (5th Cir. 1997).
      Rice has not shown that the district court abused its discretion in denying
his motion to reduce his sentence. A reduction in Rice’s base offense level under
§ 2D1.1 pursuant to Amendment 706 would not affect his guidelines range of
imprisonment, because the guidelines range was calculated under § 4B1.1.
Because Rice’s guidelines range of imprisonment was not derived from the
quantity of crack cocaine involved in the offense, Rice was not sentenced based
on a sentencing range that was subsequently lowered by the Sentencing
Commission. See § 3582(c)(2). To the extent that Rice argues that the district
court had the discretion to reduce his sentence under § 3582(c)(2) in the light of
United States v. Booker, 543 U.S. 220 (2005), the argument is unavailing
because Booker was not “based on a retroactive amendment to the Guidelines.”
See United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). The district court did
not abuse its discretion in denying Rice’s motion for a reduction of sentence.
      AFFIRMED.




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