     Case: 09-40172     Document: 00511142705          Page: 1    Date Filed: 06/15/2010




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

                                                  FILED
                                                                            June 15, 2010
                                     No. 09-40172
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

DAMIEN DESHONG COUNCIL,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 3:03-CR-6-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Federal prisoner Damien Deshong Council was convicted by a jury of
possession of a controlled substance with intent to distribute (cocaine base or
“crack”) (count one), felon in possession of a firearm (count two), and using,
carrying, or possessing a firearm during and in relation to a drug trafficking
crime (count three). The district court initially sentenced Council to a 420-
month term of imprisonment, but this court remanded for resentencing in the
light of United States v. Booker, 543 U.S. 220 (2005). At resentencing, the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                No. 09-40172

district court imposed a 137-month term of imprisonment, representing a
significant downward variance from the sentencing guidelines range of 360
months to life imprisonment set forth in the presentence report, which the
district court adopted.
      Council filed a motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2), based on Amendment 706 to U.S.S.G. § 2D1.1(c). In denying the
motion, the district court noted that Council was “found to be a career offender,
which resulted in a guideline range of 360 months to life,” and that although
Council’s “base offense level was reduced, his total offense level and guideline
range remain the same.”
      The court has the discretion to reduce a sentence “in the case of a
defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” § 3582(c)(2). That is, §
3582(c)(2) permits the discretionary modification of a defendant’s sentence where
the defendant’s sentencing range is actually lowered by the Sentencing
Commission. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert.
denied, 130 S. Ct. 517 (2009). The crack cocaine guideline amendments do not
apply to defendants sentenced as a career offenders because they were not
sentenced based on a sentencing range that was subsequently lowered by the
Sentencing Commission. See United States v. Anderson, 591 F.3d 789, 791 (5th
Cir. 2009).
      Council argues that he was not sentenced as a career offender at
resentencing and was, therefore, eligible for a reduced sentence under § 3582(c).
Although the district court imposed a downward variance, the record reflects
that Council’s guidelines sentencing range was derived from his career offender
status and not from the quantity of crack cocaine involved in the offense.
Accordingly, he was not sentenced “based on a sentencing range that has

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                                  No. 09-40172

subsequently been lowered by the Sentencing Commission.” § 3582(c)(2). He is
ineligible for a § 3582(c)(2) sentence reduction. See Anderson, 591 F.3d at 791.
The district court did not err or otherwise abuse its discretion in denying
Council’s motion for a sentence reduction. See Doublin, 572 F.3d at 237.
      To the extent Council argues that the application of U.S.S.G. § 1B1.10 is
not mandatory, this argument is foreclosed. See id. at 238. Because the district
court simply denied the motion and did not consider any sentence reduction, we
do not address Council’s arguments that the district court erred in not
considering the full panoply of the 18 U.S.C. § 3553(a) factors in determining his
new, reduced sentence in light of Kimbrough v. United States, 552 U.S. 85
(2007), and Booker.
      AFFIRMED.




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