     Case: 08-50506 Document: 00511316087 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 08-50506
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PAUL RUIZ, also known as Veneno,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:03-CR-144-14


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Paul Ruiz, federal prisoner # 39507-180, pleaded guilty to one count of
conspiracy to violate the Racketeering and Corrupt Organizations Act through
gang-related activity involving, among other things, the distribution of crack
cocaine, in violation of 18 U.S.C. § 1962. He appeals the district court’s order
granting the Government’s motion to reduce his sentence, pursuant to 28 U.S.C.
§ 3582(c)(2), based on the retroactive amendment to the crack cocaine guideline.
The district court granted a two-level reduction to his total offense level 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 08-50506 Document: 00511316087 Page: 2 Date Filed: 12/08/2010

                                  No. 08-50506

sentenced him to the lowest available sentence under the amended guidelines
range, 324 months.
      Ruiz contends that the district court erred by granting the Government’s
§ 3582(c)(2) motion without providing him notice, the opportunity to respond, or
an evidentiary hearing. He argues that the district court failed to consider the
18 U.S.C. § 3553(a) factors and his postconviction conduct in imposing the
reduced sentence and further argues that the district court’s failure to provide
notice and a hearing foreclosed him from seeking an additional sentencing
reduction, urging that the two-level reduction awarded was insufficient.
      Ruiz has failed to demonstrate an abuse of discretion on the district court’s
part. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied,
130 S. Ct. 3462 (2010). The record demonstrates that the district court gave due
consideration to the motion as a whole and implicitly considered the § 3553(a)
factors. See United States v. Cooley, 590 F.3d 293, 298 (5th Cir. 2009). The true
nature of Ruiz’s argument is not that the district court failed to consider the
§ 3553(a) factors in formulating the sentence imposed but that the district court
failed to vary below the amended guidelines range based on the § 3553(a) factors,
Booker v. United States, 543 U.S. 220 (2005), and its progeny. The argument is
meritless. Booker does not apply to sentence reductions under § 3582(c)(2), and
a district court considering such a motion may not impose a sentence below the
amended guideline range. Dillon v. United States, 130 S. Ct. 2683, 2692 (2010);
United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, 130 S. Ct.
517 (2009).
      Moreover, because the district court granted Ruiz all possible available
relief under the retroactive amendment to the crack guideline, any error
resulting from its failure to provide him with notice, the opportunity to respond,
or a hearing was harmless. See F ED. R. C RIM. P. 52(a); see also United States v.
Gonzalez-Balderas, 105 F.3d 981, 984 (5th Cir. 1997). The district court’s order
is AFFIRMED.

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