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

                                                FILED
                                                                  June 24, 2009
                                 No. 08-50700
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

KEVIN JEROME MEDLOCK, also known as Kevin Medlock

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:04-CR-17-2


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Kevin Jerome Medlock, federal prisoner # 35987-180, pleaded guilty in
2004 to possession with the intent to distribute five grams or more of “crack”
cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and was sentenced to
a 130-month term of imprisonment. He appeals the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion for a reduction of sentence. We review the denial




      *
      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should not be published and is not precedent except under the limited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. 08-50700

of a § 3582 motion for abuse of discretion. United States v. Boe, 117 F.3d 830,
831 (5th Cir. 1997).
      Medlock’s argument that the district court should be able to exercise
discretion under United States v. Booker, 543 U.S. 220 (2005), to resentence him
relies on the false premise that § 3582 applies to his situation.        “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) (emphasis added). Section
3582(c)(2) does not apply to Medlock because his sentencing range has not
subsequently been lowered by an amendment to the Guidelines. Amendment
706 reduced the base offense levels set forth in U.S.S.G. § 2D1.1(c) applicable to
most crack cocaine offenses. See United States v. Burns, 526 F.3d 852, 861 (5th
Cir. 2008). A reduction in Medlock’s base offense level under § 2D1.1 pursuant
to Amendment 706 would not affect his guidelines range because his base offense
level and concomitant range was calculated under § 4B1.1, the career offender
guideline.   Because Medlock’s guidelines range was not derived from the
quantity of crack cocaine involved in the offense, he was not sentenced based on
a sentencing range that was subsequently lowered by the Sentencing
Commission. See § 3582(c)(2).
      The district court did not abuse its discretion in denying Medlock’s motion
for a reduction of sentence. The district court’s judgment is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED as moot. Medlock’s
motion to proceed in forma pauperis is DENIED.




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