United States Court of Appeals, Fifth CircuitNov 3, 2009
351 Fed. Appx. 931 (5th Cir. 2009)

No. 09-30057 Summary Calendar.

November 3, 2009.

Corey Ross Amundson, U.S. Attorney's Office, Baton Rouge, LA, for Plaintiff-Appellee.

Rebecca L. Hudsmith, Federal Public Defender, Federal Public Defender's Office, Western District of Louisiana, Lafayette, LA, Richard Mark Upton, Federal Public Defender's Office, Baton Rouge, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana, USDC No. 3:03-CR-39-1.

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

James B. Dotson, Jr., federal prisoner # 0354-095, pleaded guilty to distribution of cocaine base and possession with the intent to distribute cocaine. He was sentenced to 121 months of imprisonment. He appeals the district court's grant of his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence, which was based on the United States Sentencing Commission's amendments to the Sentencing Guidelines's base offense levels for crack cocaine. The district court reduced Dotson's sentence to 120 months, the statutory minimum sentence.

Dotson argues that he is entitled to have his sentence reduced further pursuant to Amendment 709, which addressed two areas of the Guidelines' criminal history rules. Amendment 709 is not listed by the Sentencing Commission's policy statement in U.S.S.G. § 1B1.10 as a Guideline amendment that applies retroactively. Dotson argues that the district court was not limited by the Guidelines' list of retroactively applicable amendments because, after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines are advisory.

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. 2009), petition for cert. filed (Sept.21, 2009) (No. 09-6657). Amendment 709 is not listed as an amendment covered by the policy statement in § 1B1.10. See § 1B1.10. Therefore, the plain language of § 3582(c) dictated that the district court was not authorized to reduce a sentence based on Amendment 709 because that would be inconsistent with Sentencing Commission policy. See § 1B.10, comment, (n. 1); § 3582(c)(2). Moreover, this court has held that " Booker does not alter the mandatory character of Guideline § 1B1.10's limitations on sentence reductions." Doublin, 572 F.3d at 238. Dotson has not shown that the district court erred in 3 granting his motion and reducing his sentence to 120 months.