          IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                 No. 06-20092                         F I L E D
                               Summary Calendar
                                                                     September 6, 2007

UNITED STATES OF AMERICA,                                          Charles R. Fulbruge III
                                                                           Clerk
                                             Plaintiff-Appellee,

versus

JOSE HELI-MEJIA,

                                             Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:91-CR-176-4


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Jose Heli-Mejia, federal prisoner # 37528-004, has appealed the district
court’s order denying his motion for reduction of his sentence based on
retroactive application of Amendment 591 of the Sentencing Guidelines. We
pretermit the question whether Heli-Mejia’s notice of appeal was timely filed.
See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).




      *
        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should not be published and is not precedent except under the limited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. 06-20092
                                      -2-

      The district court may modify an imprisonment term when a defendant
has been sentenced based on a sentencing range that has subsequently been
lowered. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(c). This court reviews
the denial of a § 3582 motion for an abuse of discretion. United States v.
Pardue, 36 F.3d 429, 430 (5th Cir. 1994).
      Heli-Mejia contends that his sentence should be reduced because of the
adoption of Amendment 591 to the Sentencing Guidelines; he invokes
Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005), and reiterates
the arguments asserted in the district court with respect to the determination
of his base offense level.
      Amendment 591 does not lower the guidelines range applicable to Heli-
Mejia. See U.S.S.G. App. C, Vol. II, Amend. 591. Amendment 591 does not
apply to the determination of base (or specific) offense levels within the
applicable offense guideline section or to any consideration of relevant
conduct. See id. Amendment 591 makes clear that the sentencing court
should determine the applicable offense guideline section in Chapter Two of
the Sentencing Guidelines based only upon the offense charged in the
indictment for which the defendant was convicted (or upon an offense
stipulated as part of a plea agreement), assisted by the Statutory Index. Id.;
see U.S.S.G. § 1B1.2(a) & comment. (n.1). Because Heli-Mejia was charged
with and convicted of violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846,
§ 2D1.1 is the applicable offense guideline section. See U.S.S.G. App. A
(Statutory Index) (1991); U.S.S.G. § 2D1.4 (1991). Heli-Mejia’s offense level
was determined under § 2D1.1. The district court did not abuse its discretion
in denying Heli-Mejia’s § 3582(c) motion. The appeal is
      DISMISSED AS FRIVOLOUS.
