Case: 09-40103 Document: 00511283150 Page: 1 Date Filed: 11/03/2010




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

                                                 FILED
                                                                          November 3, 2010
                                     No. 09-40103
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

THOMAS ARTHUR GRIMALDO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 3:01-CR-12-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Thomas Arthur Grimaldo, federal prisoner # 44990-079,
appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction
based on the crack-cocaine amendments to the Sentencing Guidelines. Section
3582 provides a district court discretion to reduce a term of imprisonment if,
inter alia, the “sentencing range . . . has subsequently been lowered by”
amendment to the Guidelines. 18 U.S.C. § 3582(c)(2).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40103 Document: 00511283150 Page: 2 Date Filed: 11/03/2010

                                  No. 09-40103

      A district court’s decision on whether to reduce a sentence is reviewed for
abuse of discretion; its interpretation of the Guidelines, de novo. United States
v. Evans, 

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

(2010).
      Eligibility for a § 3582 reduction “is triggered only by an amendment . . .
that lowers the applicable guideline range”. U.S.S.G. § 1B1.10, cmt. n.1A; see
United States v. Gonzalez-Balderas, 

, 982 (5th Cir. 1997). Due to
the amount of crack-cocaine involved in Grimaldo’s offense, his offense level was
not reduced by the crack-cocaine amendments. Therefore, he is not eligible for
a sentence reduction under § 3582. See § 1B1.10, cmt. n.1A; 

.
      Grimaldo contends: the amended crack-cocaine Guideline conflicts with
United States v. Booker, 

(2005), and impermissibly precludes the
district court from considering the 18 U.S.C. § 3553(a) factors in reducing his
sentence below the Guidelines range of imprisonment; Booker prohibits a
mandatory application of the Guidelines; and an analysis of several § 3553(a)
factors, including his history, characteristics, and the nature and circumstances
of the offense, warrant a lower sentence.
      Booker does not apply to a § 3582(c)(2) proceeding. Dillon v. United States,

, 2691-94 (2010); United States v. Doublin, 

, 238-39
(5th Cir.), cert denied, 

(2009). Accordingly, a § 3582 movant is
entitled, at most, to the reduction allowed by the amended Guidelines range; a
sentencing court lacks discretion to reduce the sentence any further than
allowed by the amendments. 

. Because Grimaldo is not
entitled to a sentence reduction based on the crack-cocaine amendments, no
relief is available under § 3582. See