     Case: 08-50327 Document: 00511339437 Page: 1 Date Filed: 01/04/2011




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

                                                 FILED
                                                                           January 4, 2011
                                     No. 08-50327
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BARRY YETT,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:95-CR-33-2


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Barry Yett, federal prisoner # 61167-080, appeals the district court’s denial
of his motion pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 706, which
reduced the guidelines for cocaine base (crack cocaine) offenses. Yett has also
moved for leave to file a supplemental brief. For the following reasons, we
vacate the judgment of the district court and remand for further proceedings.
We also grant Yett’s motion to file a supplemental brief.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50327

      The district court denied Yett’s motion, concluding that Yett’s sentence
was based on his status as a career offender rather than on the amount of crack
cocaine he possessed.    Yett preserved the issue by way of his motion for
reconsideration, and we thus review de novo the question of the district court’s
authority to grant a reduction. See United States v. Jones, 596 F.3d 273, 276
(5th Cir. 2010).      As Yett correctly contends, the presentence report
(PSR) concluded that the career offender enhancement was rendered
inapplicable because his offense level under the crack cocaine guidelines was
higher. Thus, the PSR determined his sentencing range based on the crack
guidelines to be 292 to 365 months, and the court sentenced him to 360 months,
squarely within that range. We recently held, applying plain error review, that
a district court committed error under similar circumstances. See Jones, 596
F.3d at 275-76. We reach the same conclusion here.
      The Government has the burden of demonstrating that the error was
harmless, i.e., that the sentence would have been the same but for the error. See
United States v. Andrews, 390 F.3d 840, 846 & n.9 (5th Cir. 2004); United States
v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999). We cannot discern from the record
whether the court would have denied a reduction but for the erroneous
conclusion that Yett was sentenced based on his status as a career offender.
Accordingly, we vacate the district court’s judgment denying the § 3582(c)(2)
motion and remand for further proceedings consistent with Jones.
      Yett raises various other arguments, which we address here in the interest
of judicial efficiency and to provide guidance on remand. See United States v.
Murillo-Lopez, 444 F.3d 337, 339 and n.5 (5th Cir. 2006). Yett first argues that
his original sentence was improper in light of United States v. Booker, 543 U.S.
220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000). He also argued in
the district court that the court should treat the Guidelines as advisory in light
of Booker. These contentions are without merit. A § 3582(c)(2) proceeding is not
a full resentencing; rather, it permits a sentence reduction based on

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                                  No. 08-50327

amendments to the Guidelines within the limits prescribed by the Sentencing
Commission. Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010). Thus, it
is not a vehicle for raising errors in the original sentencing. Id. at 2694. In
addition, Booker is not applicable to a § 3582(c)(2) proceeding. Id. at 2691-93;
United States v. Doublin, 572 F.3d235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517
(2009).
      For the foregoing reasons, the judgment of the district court is vacated and
this matter is remanded for further proceedings. We express no opinion on
whether the district court, after considering appropriate factors, should exercise
its discretion to grant a reduction.
      VACATED AND REMANDED; MOTION GRANTED.




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