IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2009
No. 08-10393
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUSTY WAYNE ROBERTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:04-CR-18-ALL
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Rusty Wayne Roberts, federal prisoner # 32715-177, was convicted of
possessing with the intent to distribute methamphetamine, in violation of 21
U.S.C. § 841(a), and possessing a firearm with an obliterated serial number, in
violation of 18 U.S.C. § 922(k). He now appeals the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion, seeking a two-level sentencing reduction based on
the retroactive Amendment 706 to the crack cocaine guidelines. The district
*
Pursuant to Fifth Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Fifth Circuit Rule 47.5.4.
No. 08-10393
court denied the motion on the ground that Roberts’ offense of conviction did not
involve, and his sentence was not based upon, crack cocaine. We review the
district court’s denial of a § 3582(c)(2) motion for abuse of discretion. United
States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
Roberts renews his argument that he was entitled to a sentencing
reduction based on the retroactive crack cocaine amendments, asserting that his
sentence was based on crack cocaine. Although the presentence report (PSR)
indicates that Roberts’ offense level was initially calculated based upon
quantities of numerous drugs, including crack cocaine, the Addendum to the
PSR recalculated his offense level based solely on methamphetamine and powder
cocaine, and the sentence imposed was based only on quantities of those drugs.
As the district court correctly determined, because Roberts’ guidelines range was
not derived from a quantity of crack cocaine, he was not “sentenced to a term of
imprisonment based on a sentencing range that ha[d] subsequently been lowered
by the Sentencing Commission.” See § 3582(c)(2). Roberts’ claim that the
district court had the discretion to reduce his sentence in light of United States
v. Booker, 543 U.S. 220 (2005), and his post conviction rehabilitative efforts is
not cognizable in a § 3582(c)(2) motion. See § 3582(c)(2); see also United States
v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994) (“[Section 3582(c)(2)] only applies to
retroactive guideline amendments.”). Roberts’ argument that the sentence
imposed is unreasonable because the district court failed to consider the 18
U.S.C. § 3553(a) factors is similarly not properly brought in this appeal from the
denial of a § 3582(c)(2) motion. See United States v. Whitebird, 55 F.3d 1007,
1011 (5th Cir. 1995).
Accordingly, the district court’s judgment is affirmed. Roberts’ motion for
the production of the sentencing transcript at Government expense is denied as
moot because the district court already granted it.
AFFIRMED; MOTION DENIED AS MOOT.
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