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

                                                 FILED
                                                                          October 20, 2009
                                     No. 08-41270
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GENE EARL PETTAWAY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:98-CR-40-1


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Gene Earl Pettaway, federal prisoner # 95088-080, filed a motion for a
reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) in which he sought a
reduction in his offense level based on Amendment 706 to the crack cocaine
Guidelines. Pettaway appeals the district court’s denial of that motion. The
Government has filed a motion for summary affirmance or, alternatively, for an
extension of time to file a brief on the merits.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41270

      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. 2009), petition for cert. filed (Sept. 21, 2009) (No. 09-6657). Because the
district court’s denial of Pettaway’s motion was based on its determination that
it could not reduce Pettaway’s sentence due to his career offender status under
the 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.
      Pettaway’s guidelines range was not derived from the quantity of crack
cocaine involved in the offense, but rather from his career offender status. The
district court was thus correct in concluding that a reduction was not permitted
under § 3582(c)(2). See § 3582(c)(2). Pettaway’s argument that the district court
had the discretion to reduce his sentence under § 3582 in light of United States
v. Booker, 543 U.S. 220 (2005), is unavailing because “the concerns at issue in
Booker 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 a means of defining and limiting a district court’s
authority to reduce a sentence under § 3582(c).” Id. at 239 (internal quotation
and citation omitted).
      The district court thus did not err in denying Pettaway’s motion for a
reduction of sentence.    The district court’s judgment is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s motion for an extension of time is DENIED.

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