     Case: 09-60803 Document: 00511280956 Page: 1 Date Filed: 11/01/2010




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

                                                  FILED
                                                                           November 1, 2010
                                     No. 09-60803
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee

v.

QUENTIN NELSON,

                                                    Defendant - Appellant


                     Appeal from the United States District Court
                       for the Northern District of Mississippi
                               USDC No. 4:96-CR-89-2


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Quentin Nelson, federal prisoner # 10529-042, appeals the denial of his 18
U.S.C. § 3582(c)(2) motion for a sentence reduction based on the United States
Sentencing Commission’s November 1, 2007 retroactive amendment to the base
offense levels for crack cocaine offenses. He contends that the district court
erred       in   determining,   based    on   the    application    notes    accompanying
Section 1B1.10 of the Sentencing Guidelines, that he was ineligible for a
reduction of sentence because he was not serving his original term of

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60803 Document: 00511280956 Page: 2 Date Filed: 11/01/2010

                                        No. 09-60803

imprisonment. He argues that the term of imprisonment imposed following the
revocation of his supervised release is part of his original sentence and that, in
any event, the district court erred in applying Section 1B1.10 and its
accompanying commentary as mandatory.1
       Section 3582(c)(2) “permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, 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). The
applicable policy statement that is found in Section 1B1.10, prohibits a district
court from reducing a term of imprisonment below the term of imprisonment the
defendant has already served.                U.S. Sentencing Guidelines Manual §
1B1.10(b)(2)(C). Moreover, a defendant is entitled to a reduction in his term of
imprisonment only if it was imposed as part of the original sentence. § 1B1.10,
cmt. (n.4(A)). He may not obtain “a reduction in the term of imprisonment
imposed upon revocation of supervised release.” Id.
       Nelson’s argument that United States v. Booker, 543 U.S. 220 (2005),
rendered Section 1B1.10 advisory fails. This court previously ruled Booker did
“not alter the mandatory character of Guideline § 1B1.10’s limitations on
sentence reductions.” United States v. Doublin, 572 F.3d 235, 238 (5th Cir.
2009). Accordingly, Nelson’s arguments do not establish that the district court
erred in determining that it lacked the authority to reduce his sentence under
Section 3582(c)(2). See Dillon v. United States, 130 S. Ct. 2683, 2692 (2010).
       As Nelson has served his original custodial sentence, the Guidelines
prohibit any reduction in that sentence or the sentence Nelson received upon


       1
          Nelson also argues that Section 1B1.10, cmt. (n.4(A)) is unconstitutional and should
not prohibit reduction of his revocation sentence because it is inconsistent with the definitions
of supervised release in Chapter Seven of the Guidelines. As Nelson raised those issues for
the first time in his reply brief, we will not consider them. See United States v. Jimenez, 509
F.3d 682, 693 n.10 (5th Cir. 2007).

                                               2
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                                No. 09-60803

revocation of his supervised release. Because Nelson has no remaining
supervised release term that may be modified or terminated, he can obtain no
meaningful relief from the courts.
      Nelson’s appeal is moot. Accordingly, it is DISMISSED.




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