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

                                                 FILED
                                                                         November 24, 2009
                                     No. 08-20375
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

ANTHONY WAYNE CLARK,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:99-CR-628-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Anthony Wayne Clark, federal prisoner # 87836-079, pled guilty to four
counts of distribution of cocaine base, two counts of aiding and abetting
possession with intent to distribute cocaine base, one count of carrying a firearm
during a drug trafficking offense, and one count of conspiracy to possess with
intent to distribute cocaine base. He was sentenced as a career offender under
U.S.S.G. § 4B1.1.       He appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20375

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 U.S.S.G. app. C
amend. 706 (2007). The Government has filed a motion for summary affirmance
or, alternatively, for an extension of time to file a brief on the merits.
      Clark argues that although he was sentenced as a career offender under
§ 4B1.1, the district court nevertheless had discretion to reduce his sentence
under § 3582(c)(2). He also contends that a mandatory application of the policy
statements set forth in U.S.S.G. § 1B1.10 would violate the plain language of
§ 3582(c)(2), the district court’s obligation to consider the 18 U.S.C. § 3553(a)
factors, and the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005).     He further asserts that the district court erred in initially
sentencing him as a career offender.
      We review Clark’s arguments de novo. See United States v. Doublin, 572
F.3d 235, 237 (5th Cir. 2009), cert. denied, No. 09-6657, 2009 WL 3073270 (Nov.
2, 2009).     Section 3582(c)(2) permits the discretionary modification of a
defendant’s sentence where the sentencing range is later lowered by the
Sentencing Commission, “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).               Eligibility for
consideration under § 3582(c)(2) is triggered only by an amendment that lowers
the applicable Guidelines range. See U.S.S.G. § 1B1.10 cmt. n.1(A) (2008).
      Clark’s Guideline range was not derived from the quantity of crack cocaine
involved in the offense, but rather from his career-offender status. The district
court therefore was correct in concluding that a sentence reduction was not
permitted under § 3582(c)(2). See 18 U.S.C. § 3582(c)(2). Moreover, Clark’s
argument that the district court had the discretion to reduce his sentence under
§ 3582 in light of Booker is unavailing because “the concerns at issue in Booker
do not apply in an 18 U.S.C. § 3582(c)(2) proceeding.” Doublin, 572 F.3d at 238;

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                                     No. 08-20375

see also United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994) (holding that issues
that do not apply to retroactive Guidelines amendments are not cognizable
under § 3582(c)(2)). Although the Guidelines must be treated as advisory in an
original sentencing proceeding, Booker does not prevent Congress from
incorporating a Guideline provision “as a means of defining and limiting a
district court’s authority to reduce a sentence under § 3582(c).” Doublin, 572
F.3d at 239 (internal quotation marks and citation omitted).
      Clark furthermore may not use his § 3582(c)(2) motion to challenge the
appropriateness of the district court’s application of the career-offender
enhancement in its calculation of his original sentence. As we have previously
stated, “[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). The application of § 1B1.10 is mandatory, Doublin, 572 F.3d at 238, and
§ 1B1.10 requires a district court to “leave all other guideline application
decisions unaffected” in reducing a defendant’s sentence under § 3582(c)(2).
                                 *        *         *
      Accordingly, the judgment of the district court is AFFIRMED; the
Government’s motion for summary affirmance is GRANTED; and the
Government’s motion for an extension of time is DENIED as unnecessary.




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