     Case: 08-40958     Document: 00511104202          Page: 1    Date Filed: 05/07/2010




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

                                                  FILED
                                                                             May 7, 2010
                                     No. 08-40958
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL JOSEPH DERROW,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:98-CR-6-9


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Michael Joseph Derrow, federal prisoner # 03199-286, appeals the denial
of his 18 U.S.C. § 3582 motion to reduce his 480-month sentence following his
conviction for conspiracy to possess with the intent to distribute crack cocaine
and possession with the intent to distribute crack cocaine. Derrow sought a
reduction in his sentence based on Amendment 706 to the crack cocaine
Guidelines. The Government has filed a motion for summary affirmance or,



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40958    Document: 00511104202 Page: 2         Date Filed: 05/07/2010
                                 No. 08-40958

alternatively, for an extension of time to file a brief on the merits. Derrow has
moved to respond to the Government’s motion.
      Although the district court’s decision whether to reduce a sentence
ordinarily is reviewed for an abuse of discretion, a court’s interpretation of the
Guidelines is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237 (5th
Cir.), cert. denied, 130 S. Ct. 517 (2009). Contrary to Derrow’s argument that
the district court failed to provide reasons for its denial, the sentencing court is
not required to provide reasons for its denial of a § 3582 motion. See United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), petition for cert. filed, (Jan.
28, 2010) (09-8939). The district court did not provide reasons for its denial, but
the order was entered after the Government filed its response arguing that
Derrow’s guidelines range was not altered by the amendments. Because the
district court’s denial of Derrow’s motion was presumably based on a
determination that Derrow’s sentence remained the same under the amended
Guidelines, review is de novo. See id.
      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). Sentence reductions under § 3582 are thus governed
by the policy statements of the Guidelines. Doublin, 572 F.3d at 237.
      Under the amended Guidelines, Derrow’s offense level was altered, but his
guidelines range remained the same. Thus, a reduction was not permitted under
§ 3582(c)(2). See § 3582(c)(2). Derrow’s arguments regarding the applicability
of United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530
U.S. 466 (2000), are unavailing because those concerns “do not apply in an 18
U.S.C. § 3582(c)(2) proceeding.”     Doublin, 572 F.3d at 238.       Although the
Guidelines must be treated as advisory in an original sentencing proceeding,
Booker does not prevent Congress from incorporating a guideline provision “as

                                         2
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                                No. 08-40958

a means of defining and limiting a district court’s authority to reduce a sentence
under § 3582(c).” Id. at 239 (internal quotation marks and citation omitted).
      The district court did not err in denying Derrow’s motion for a reduction
of sentence. The district court’s judgment is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED, and its motion for an extension
of time is DENIED. Derrow’s motion to file a response to the Government’s
motion for summary affirmance is DENIED.




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