     Case: 08-20479     Document: 00511268615          Page: 1    Date Filed: 10/20/2010




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

                                                 FILED
                                                                          October 20, 2010
                                     No. 08-20479
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WENDELL ALBOYD CORNETT,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:95-CR-265-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Wendell Alboyd Cornett, federal prisoner # 04675-081, was convicted in
1997 of 14 offenses, including conspiring with intent to distribute cocaine and
cocaine base and aiding and abetting the possession with intent to distribute
cocaine. The district court determined at his original sentencing that Cornett
was accountable for 350 kilograms of powder cocaine and 234.6 grams of crack
cocaine, resulting in a base offense level of 38. Cornett was sentenced to life
imprisonment on several counts.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-20479   Document: 00511268615 Page: 2        Date Filed: 10/20/2010
                                No. 08-20479

      This court is now presented with Cornett’s appeal from the district court’s
denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
Cornett contends that the district court had the authority to reduce his sentence
pursuant to the retroactive amendments to the Sentencing Guidelines
concerning crack cocaine. He argues that the district court denied relief based
on the mistaken belief that the guidelines were mandatory. Cornett also asserts
that his case presents extraordinary circumstances given the district court’s
statement at the original sentencing that it would not have chosen a life
sentence were it not bound by the guidelines. The Government has moved for
summary affirmance in lieu of filing an appellee’s brief.
      Because the combined offense level for the two drug types (powder cocaine
and crack cocaine) is less than the offense level for the powder cocaine alone,
Cornett was not entitled to a two-level reduction in his offense level under the
retroactive guideline amendments. See U.S.S.G. Supp. to App’x C, Amend. 715.
Accordingly, the district court did not err in denying Cornett’s § 3582(c)(2)
motion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010).
      To the extent that Cornett contends that he was eligible for a reduction in
his sentence under § 3582(c)(2) because the guidelines are no longer mandatory,
his argument is unavailing. The Supreme Court has determined that United
States v. Booker, 543 U.S. 220 (2005), does not apply to sentence reductions
under § 3582(c)(2) and that the district court may not impose a sentence below
the amended guideline range unless the sentencing court originally imposed a
term of imprisonment below the guidelines range. Dillon v. United States, 130
S. Ct. 2683, 2692 (2010). Likewise, the Booker reasonableness standard does not
apply in proceedings under § 3582(c)(2). Evans, 587 F.3d at 672.
      In view of the foregoing, the judgment of the district court is AFFIRMED,
and the Government’s motion for summary affirmance is GRANTED.



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