IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31044
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN D. ROSS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CR-42-ALL-B
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May 29, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Brian D. Ross, federal prisoner #03211-095, appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for
reduction of his sentence for illegally possessing a firearm in
violation of 18 U.S.C. § 922(g)(1). Ross contends that Amendment
591 to the sentencing guidelines retroactively applies to bar the
calculation of his sentence based on conduct beyond his offense
of conviction. Ross asserts that his base offense level was
*
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that this opinion should not be published and is not precedent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. 01-31044
-2-
improperly calculated based on his purported possession of more
than five grams of cocaine base and that the district court
violated his constitutional rights, including his right against
double jeopardy, by increasing his base offense level by two
levels for possession of a firearm.
18 U.S.C. § 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
sentencing guidelines, if the 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).
The applicable policy statement is U.S.S.G. § 1B1.10, which
provides that the court should consider the term of imprisonment
it would have imposed had certain amendments, including Amendment
591, been in effect at the time of sentencing. Id.; U.S.S.G.
§ 1B1.10(c), p.s.
Nothing in Amendment 591 requires that the sentencing
guidelines be applied any differently than they were at Ross’
sentencing. As required by Amendment 591, the district court
applied U.S.S.G. § 2K2.1, the guideline section identified in the
Statutory Index as applicable to an 18 U.S.C. § 922(g) offense.
Amendment 591 does not bar either the district court’s
application of the U.S.S.G. § 2K2.1(c)(1)(A) cross-reference or
its consideration of Ross’ relevant conduct of drug possession in
applying that cross-reference. Furthermore, Ross’ assertion that
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his constitutional rights were violated because his base offense
level was increased by two levels based on his possession of a
firearm has no relation to Amendment 591 or any other sentencing
guidelines amendment.
In light of the foregoing, Ross has failed to establish that
his sentence was based upon a sentencing range that has
subsequently been lowered by an amendment to the sentencing
guidelines. See Gonzalez-Balderas, 105 F.3d at 982. Ross’
claims therefore do not implicate 18 U.S.C. § 3582(c)(2), and the
district court lacked the authority to reduce Ross’ sentence
pursuant to that statute. See United States v. Lopez, 26 F.3d
512, 515 & n.3 (5th Cir. 1994). The district court’s judgment
denying Ross’ motion for reduction of sentence is AFFIRMED.