Case: 08-40621 Document: 00511316252 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 08-40621
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

MOSES ROGERS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:95-CR-26-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Moses Rogers, federal prisoner # 05596-078, appeals the district court’s
denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his sentence for
possession with intent to distribute cocaine. Rogers argues that he is entitled
to a sentence reduction under § 3582(c)(2) based on Amendments 706 and 715
to the United States Sentencing Guidelines. He asserts that the refusal of the
district court to grant him a sentence reduction based upon these amendments
was contrary to the policy statements of U.S.S.G. § 1B1.10(a). The Government
has filed a motion for summary affirmance or, alternatively, for an extension of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40621 Document: 00511316252 Page: 2 Date Filed: 12/08/2010

                                  No. 08-40621

time within which to file a brief. The district court's decision whether to reduce
a sentence under § 3582(c)(2) is reviewed for abuse of discretion. United States
v. Evans, 

, 672 (5th Cir. 2009), cert. denied, 

(2010).
      Rogers has not demonstrated that the district court wrongly denied his
§ 3582(c)(2) motion. Rogers was not eligible for a sentence reduction pursuant
to § 3582(c)(2). The sentence that Rogers received –i.e., the statutory maximum
sentence – would remain the applicable sentence after any sentence reduction
because Rogers’s post-amendment guidelines range continued to exceed the
statutory maximum. Thus, because the crack cocaine amendments would not
have the effect of reducing Rogers’s advisory guidelines range, the district court
properly found that Rogers was ineligible for a sentence reduction under
§ 3582(c)(2). See § 1B1.10(a)(2)(B).
      Rogers also argues that the district court committed procedural error and
abused its discretion by failing to address the factors delineated in 18 U.S.C.
§ 3553(a) and by failing to adhere to the prescriptions of United States v. Booker,

(2005). However, because the amendments did not impact Rogers’s
guidelines range, and thereby rendered him ineligible for a sentence reduction,
the district court was not required to consider the § 3553(a) factors. See
§ 1B1.10(a)(2)(B). Furthermore, the Supreme Court’s decision in Booker does not
apply to sentence reductions under § 3582(c)(2) because such proceedings are not
full resentencings. United States v. Doublin, 

, 238 (5th Cir.), cert.
denied, 

(2009); see also Dillon v. United States, 

,
2691-93 (2010). Rogers’s arguments therefore are unavailing.
      In light of the foregoing, the Government’s motion for summary affirmance
is GRANTED, and the judgment of the district court is AFFIRMED.               The
Government’s alternative motion for an extension of time to file a brief is
DENIED as unnecessary.




                                        2