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

                                                FILED
                                                                 May 29, 2009
                                No. 08-60657
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JAMES R BROWN, JR

                                           Defendant-Appellant


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 1:96-CR-57-2


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      James R. Brown, Jr., federal prisoner # 04437-043, pleaded guilty to
conspiracy to possess with the intent to distribute crack cocaine. He appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of
sentence. The decision whether to reduce a sentence under § 3582(c)(2) is
discretionary, and we review the denial of a § 3582 motion for an abuse of
discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).



      *
      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should not be published and is not precedent except under the limited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. 08-60657

      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. See § 3582(c)(2); United States v. Gonzalez-Balderas, 105 F.3d 981,
982 (5th Cir. 1997). Amendment 706 modified the guidelines ranges applicable
to crack cocaine offenses to reduce the disparity between crack cocaine and
powder cocaine sentences. See United States v. Burns, 526 F.3d 852, 861 (5th
Cir. 2008). In general, the effect of Amendment 706 is to decrease by two levels
the base offense levels for crack cocaine offenses. See U.S.S.G. § 2D1.1; U.S.S.G.
Supp. to App’x C, Amend. 706. However, the base offense level for offenses
involving 4.5 kilograms or more of crack cocaine remained unchanged. See
§ 2D1.1.
      The district court’s refusal to reduce Brown’s sentence based on an
inapplicable amendment to the Guidelines was not an abuse of discretion. To
the extent that Brown argues that the district court improperly treated the
Guidelines as mandatory in violation of United States v. Booker, 543 U.S. 220
(2005), we do not reach this argument because Brown was not eligible for a
sentence reduction pursuant to § 3582(c)(2).
      AFFIRMED.




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