     Case: 09-10066 Document: 00511319430 Page: 1 Date Filed: 12/13/2010




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

                                                 FILED
                                                                         December 13, 2010
                                     No. 09-10066
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROSE MARY AUBREY, also known as Rose,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:00-CR-311-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Rose Mary Aubrey, federal prisoner # 34761-077, was convicted of
conspiracy to possess with intent to distribute (1) in excess of five kilograms of
cocaine, (2) in excess of fifty grams of crack cocaine, and (3) in excess of one
hundred kilograms of marijuana, all in violation of 21 U.S.C. § 846. She appeals
the district court’s denial of her 18 U.S.C. § 3582(c)(2) motion for reduction of
sentence. We review the district court’s denial of a § 3582(c)(2) motion for abuse



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10066 Document: 00511319430 Page: 2 Date Filed: 12/13/2010

                                   No. 09-10066

of discretion. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied,
130 S. Ct. 517 (2009).
      Aubrey argues that the district court abused its discretion by denying her
§ 3582(c)(2) motion. She maintains that the sentencing court never made any
findings regarding the quantity of drugs attributable to her and that United
States v. Booker, 543 U.S. 220 (2005), is applicable to § 3582(c)(2) proceedings.
Aubrey also argues that the district court erred in denying her motion for
appointed counsel.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence only where the defendant’s sentencing range is actually lowered by the
Sentencing Commission. See § 3582(c)(2). Because Aubrey was held accountable
for more than 4.5 kilograms of cocaine base, Amendment 706 to the Sentencing
Guidelines, which modified the sentencing ranges applicable to crack cocaine
offenses, did not change her sentencing range. See U.S.S.G. Supp. to App’x C,
Amend. 706; § 2D1.1(c)(1). Further, a § 3582(c)(2) motion “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). Finally, contrary to Aubrey’s
assertion, Booker is not applicable in § 3582(c)(2) proceedings. See Dillon v.
United States, 130 S. Ct. 2683, 2691-94 (2010); Doublin, 572 F.3d at 237-39. The
district court also did not err in failing to appoint counsel to represent Aubrey
in connection with her § 3582(c)(2) motion. See Whitebird, 55 F.3d at 1010-11.
      AFFIRMED.




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