     Case: 08-31029     Document: 00511027199          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 08-31029
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICTOR G KELLEY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 3:95-CR-30024-1


Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Victor G. Kelley, federal prisoner # 09040-035, appeals the district court’s
denial of 18 U.S.C. § 3582(c)(2) relief from his 360-month sentence following his
conviction for distributing crack cocaine. Kelley contends that all sentences
inconsistent with United States v. Booker, 543 U.S. 220 (2005), have now been
lowered. He invokes United States v. Kimbrough, 552 U.S. 85 (2007), and argues
that the probation officer should not have increased his sentence by three levels
for being a manager or supervisor of the conspiracy. He contends the quantity

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-31029   Document: 00511027199 Page: 2        Date Filed: 02/12/2010
                                No. 08-31029

of cocaine on which he was sentenced was not proven beyond a reasonable doubt
to the jury. He also argues that the district court should have ordered a hearing.
      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.), cert. denied, 130 S. Ct. 517 (2009). Because the district court’s denial of
Kelley’s motion was based on its determination that Kelley’s sentence remained
the same under the amended Guidelines, review is de novo. See id.
      Even with the two-level reduction to Kelley’s base offense level, his
guidelines range of imprisonment remained the same. The district court was
thus correct in concluding that a reduction was not permitted under § 3582(c)(2).
See § 3582(c)(2). Kelley’s argument that he was entitled to § 3582(c)(2) relief
from the enhancement to his offense level for his leadership role is unavailing.
On its face, Amendment 706 applies only to offense levels based on crack and
does not apply to enhancements. See U.S.S.G. Supp. to App’x C, Amend. 706.
Kelley’s argument that the district court had the discretion to reduce his
sentence under § 3582 in light of Booker 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 guidelines 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 Kelley’s motion for a
reduction of sentence. Nor did the court err in failing to hold a hearing or in
failing to order a new presentence report. See F ED. R. C RIM. P. 32, 43(b)(4);
United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994). The district
court’s judgment is AFFIRMED.



                                        2
