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

                                                 FILED
                                                                           March 31, 2009
                                     No. 08-10650
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

SIDNEY LEUDEO CAICEDO, also known as Aron Borrero

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:98-CR-206-2


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Sidney Leudeo Caicedo, federal prisoner # 79331-079, was convicted of
conspiracy to possess with the intent to distribute and distribution of cocaine, 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, which seeks a two-level sentencing reduction based
on the retroactive Amendment 706 to the crack cocaine guidelines. The district
court denied the motion on the ground that Caicedo was held accountable only



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10650

for powder cocaine. We review the district court’s denial of a § 3582(c)(2) motion
for abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
      Caicedo renews his argument that he was entitled to a sentencing
reduction based on the retroactive crack cocaine amendments; he asserts that
his original indictment and the offense conduct involved crack cocaine. Although
the initial indictment alleged offenses involving both powder and crack cocaine,
Caicedo pleaded guilty to a superseding indictment that alleged offenses
involving only powder cocaine. The presentence report (PSR) also indicates that
Caicedo’s offense level was calculated based upon a quantity of cocaine, not crack
cocaine. As the district court correctly determined, because Caicedo’s guidelines
range was not derived from a quantity of crack cocaine, he was not “sentenced
to a term of imprisonment based on a sentencing range that ha[d] subsequently
been lowered by the Sentencing Commission.” See § 3582(c)(2). To the extent
Caicedo challenges the validity of the superseding indictment, such a claim is
not cognizable in a § 3582(c)(2) motion. See § 3582(c)(2); United States v. Shaw,
30 F.3d 26, 29 (5th Cir. 1994).
      AFFIRMED.




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