Case: 08-30997 Document: 00511287000 Page: 1 Date Filed: 11/08/2010




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

                                                 FILED
                                                                          November 8, 2010
                                     No. 08-30997
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BENJAMIN BLOUNT,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:98-CR-20058-3


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Benjamin Blount, federal prisoner # 06674-035, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his life sentence for
conspiring to distribute more than 50 grams of cocaine base. The crack cocaine
amendments are inapplicable to an offender whose offense level was based on 4.5
kilograms or more of crack cocaine. U.S.S.G. § 2D1.1 n.10(D)(ii)(I). Blount’s
offense level was based on 164.7 kilograms, and thus was not affected by the
crack cocaine amendments. See id.; § 3582(c)(2). Because Blount’s offense level

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30997 Document: 00511287000 Page: 2 Date Filed: 11/08/2010

                                   No. 08-30997

was not affected by the crack cocaine amendments, he was ineligible for relief,
and the district court’s denial of his motion for § 3582(c)(2) relief was not an
abuse of discretion. See United States v. Evans, 

, 672 (5th Cir.),
cert. denied, 

(2009); United States v. Doublin, 

, 237
(5th Cir.), cert. denied, 

(2009).
      Blount’s argument that the district court had the discretion to reduce his
sentence under § 3582 in light of United States v. Booker, 

(2005),
is unavailing because “the concerns at issue in Booker do not apply in an
18 U.S.C. § 3582(c)(2) proceeding.” 

. Although the
Guidelines 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).” 

(internal quotation and citation omitted).
      Blount also contends that the district court erred by denying his
§ 3582(c)(2) motion without conducting an evidentiary hearing. He argues that
his motion raised issues concerning the application of Booker and that all parties
should have been present when these issues were resolved.
      Pursuant to the Federal Rules of Criminal Procedure, a defendant need
not be present at a § 3582(c) proceeding. F ED. R. C RIM. P. 43(b)(4). Generally,
a district court must hold a hearing only if it is necessary because the facts are
in dispute. See Dickens v. Lewis, 

, 1255 (5th Cir. 1984). Because
Blount was ineligible for relief under § 3582(c)(2), the district court did not abuse
its discretion by denying Blount’s motion for a reduction in sentence absent an
evidentiary hearing. See id.; F ED. R. C RIM. P. 43(b)(4).
      The judgment of the district court is AFFIRMED.




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