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

                                                FILED
                                                                October 5, 2009
                                No. 08-61089
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ALVIN MAGEE,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                           USDC No. 3:92-CR-67-2


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
      Alvin Magee, federal prisoner # 03067-043, pleaded guilty to conspiracy
to possess with intent to distribute cocaine base and use of a firearm during the
commission of a drug trafficking crime. The firearm conviction was vacated, and
Magee was sentenced to 235 months in prison. Magee now appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence,
which was based on the United States Sentencing Commission’s amendments



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-61089

to the Sentencing Guidelines’s base offense levels for crack cocaine. We review
the district court’s determination on a § 3582(c)(2) motion for abuse of discretion.
United States v. Doublin, 572 F.3d 235, 236–37 (5th Cir. 2009).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. See § 3582(c)(2). On appeal, Magee makes the same argument
that was rejected by the district court, that “approximately 4.7 kilograms” of
cocaine base was likely to have been less that 4.5 kilograms of cocaine base,
which would have entitled him to two level reduction in his base offense level
under the amended guidelines. This argument is refuted absolutely by the
record. The presentence report stated unambiguously that Magee’s base offense
level of 38 was based on “approximately 4,776.3 grams or 4.7 kilograms of crack
cocaine.” Given the specific amount of 4,776.3 grams, Magee has not shown that
the district court abused its discretion in denying his motion. See Doublin, 572
F.3d at 237.
      AFFIRMED.




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