     Case: 10-30721 Document: 00511450256 Page: 1 Date Filed: 04/19/2011




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

                                                 FILED
                                                                            April 19, 2011
                                     No. 10-30721
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BILLY JEROD MITCHELL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:01-CR-20054-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Billy Jerod Mitchell, federal prisoner # 10928-035, is serving a total term
of 200 months of imprisonment for various drug related offenses, including
conspiring to possess with the intent to distribute cocaine base and
phencyclidine. He appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction of sentence based on the retroactive amendments to U.S.S.G. § 2D1.1,
the Sentencing Guideline for crack cocaine offenses. He argues that the district
court erred in determining that he, as a career offender, was ineligible for relief.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30721 Document: 00511450256 Page: 2 Date Filed: 04/19/2011

                                   No. 10-30721

Mitchell also asks this court to remand his case to the district court so it may
resentence him under the provisions of the Fair Sentencing Act (FSA), which
became effective during the pendency of the instant appeal. See Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010).
      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) (citing
§ 3582(c)(2)). We review a district court’s denial of a reduction under § 3582(c)(2)
for an abuse of discretion, its interpretation of the Guidelines de novo, and its
findings of fact for clear error. United States v. Evans, 587 F.3d 667, 672 (5th
Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).
      Mitchell has not shown that the district court erred in determining that
he was ineligible for a reduction of sentence because he was sentenced as a
career offender. See United States v. Anderson, 591 F.3d 789, 791 (5th Cir.
2009). Mitchell argues that his sentence was not based on a guidelines range
derived from his status as a career offender because the district court granted
him a downward departure pursuant to U.S.S.G. § 5K1.1.               However, his
argument lacks merit. Section 3582(c)(2)’s “phrase ‘based on a sentencing range’
straightforwardly aligns with the familiar sentencing practice of initially
calculating a base range and then considering grounds for departing from it.”
United States v. Carter, 595 F.3d 575, 578 (5th Cir. 2010).
      Mitchell’s request for a remand is denied.       The FSA does not apply
retroactively. United States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011).
      AFFIRMED.




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