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

                                                 FILED
                                                                           October 9, 2009
                                     No. 08-31021
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BILLY RAY TATUM,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 5:91-CR-50073-1


Before JOLLY, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Billy Ray Tatum, federal prisoner # 07727-035, appeals the district court’s
denial of relief under 18 U.S.C. § 3582(c)(2) (granting district court discretion to
modify sentence when Sentencing Guideline upon which sentence was based is
subsequently amended). Tatum is serving consecutive sentences of 193 months
and 60 months of imprisonment for possession with intent to distribute cocaine



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-31021

and cocaine base and for using and carrying a firearm during a drug trafficking
offense.
      In his challenge to the district court’s judgment, Tatum contends United
States v. Booker, 543 U.S. 220 (2005), applies to proceedings involving
sentencing reductions under § 3582(c)(2) as it does in original sentencing
proceedings. He asserts that, although he was sentenced as a career offender
under Sentencing Guideline § 4B1.1 (Nov. 1992), the district court had discretion
to reduce his sentence under § 3582(c)(2).
      Although we review for abuse of discretion the district court’s decision not
to reduce Tatum’s sentence, we review de novo its interpretation or application
of the Sentencing Guidelines. United States v. Doublin, 572 F.3d 235, 237 (5th
Cir. 2009). Accordingly, we review Tatum’s contentions de novo.
      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). Eligibility for consideration under § 3582(c)(2) is
triggered only by an amendment that lowers the applicable guidelines range.
USSG § 1B1.10, comment. (n.1(A)).
      Tatum maintains his sentence should have been reduced because
Sentencing Guideline § 2D1.1 (providing sentencing guidelines for crack cocaine
offenses) was amended in 2007. Tatum’s guidelines range, however, was not
derived from the quantity of crack cocaine involved in the offense; instead, it was
pursuant to his career-offender status.      Accordingly, the district court was
correct in concluding that a reduction was not permitted under § 3582(c)(2). See
§ 3582(c)(2); USSG § 1B1.10, comment. (n.1(A)).
      In addition, our court has rejected Tatum’s contentions based on Booker.
See Doublin, 572 F.3d at 238-39. “[T]he concerns at issue in Booker do not apply
in an 18 U.S.C. § 3582(c)(2) proceeding”. Id. at 238. Although the Guidelines

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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).
      AFFIRMED.




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