                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 29, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-10758
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

IRA WAYNE PRIVETTE,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:89-CR-111-D
                      --------------------

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Ira Wayne Privette appeals from his resentencing following

his conviction for conspiracy to manufacture and possess with

intent to distribute amphetamine and possession with intent

to distribute amphetamine, during which the court denied his

18 U.S.C. § 3582(c)(2) motion.   He argues (1) for the first time

on appeal that his sentence violates Blakely v. Washington,

124 S. Ct. 2531 (2004); (2) that the district court clearly erred

in calculating his base offense level under § 3582(c)(2); and


     *
       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this opinion should not be published and is not precedent except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. 04-10758
                                -2-

(3) that the district court abused its discretion in denying him

a sentence reduction under § 3582(c)(2).    The instant appeal

therefore has two components:   (1) a direct appeal from

Privette’s resentencing and (2) an appeal from the denial of

§ 3582(c)(2) relief.

     We hold pursuant to United States v. Booker, 125 S. Ct. 738

(2005), that Privette cannot survive the plain error standard of

review, given that he has not borne his burden of showing that

the district court “would have reached a significantly different

result” under an advisory scheme and, therefore, that the error

affected his substantial rights.   See United States v. Mares, No.

03-21035, 2005 WL 503715, at *9 (5th Cir. Mar. 4, 2005).

     Booker is inapplicable to review of the denial of Privette’s

§ 3582(c)(2) motion.   By its plain language, § 3582(c)(2) is not

implicated by a decision of the Supreme Court that is unrelated

to an actual amendment of the guidelines.     We review findings of

fact made during a § 3582(c)(2) proceeding for clear error.

United States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995).      We

hold that the district court did not clearly err in including the

27 pounds, 11 ounces of amphetamine produced during the

conspiracy in the drug quantity calculation for purposes of

determining Privette’s base offense level; Charles Apodaca’s

testimony on this issue was sufficiently reliable for the

district court to make such a finding.     Additionally, the

district court’s unobjected-to inclusion of 48.5 pounds of
                             No. 04-10758
                                  -3-

phenylacetic acid in the drug quantity calculation was not

plainly erroneous.     See United States v. Vasquez, 216 F.3d 456,

459 (5th Cir. 2000).    The district court’s decision to sentence

Privette at the bottom of the amended guideline range was not

an abuse of discretion given the nature of his offense.     See

18 U.S.C. § 3553(a)(2)(A); United States v. Townsend, 55 F.3d

168, 170 (5th Cir. 1995).

     AFFIRMED; MOTION TO FILE REPLY BRIEF DENIED.
