Case: 09-40858     Document: 00511062102          Page: 1    Date Filed: 03/25/2010




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

                                                  FILED
                                                                           March 25, 2010
                                     No. 09-40858
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERT EARL THOMAS, JR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:98-CR-150-2


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Robert Earl Thomas, Jr. federal prisoner # 07315-078, appeals following
the district court's denial of his motion for modification of his sentence pursuant
to 18 U.S.C. § 3582(c)(2), wherein he argued that the amendment of the crack
cocaine Sentencing Guidelines resulted in a lowered sentencing range for his
offense. The Government moves for summary affirmance or dismissal of the
appeal, or, alternatively, for an extension of time to file a brief.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40858   Document: 00511062102 Page: 2        Date Filed: 03/25/2010
                                No. 09-40858

      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “when it is based upon a sentencing range that has subsequently been
lowered by an amendment to the Guidelines, if such a reduction is consistent
with the policy statements issued by the Sentencing Commission.” United States
v. Gonzalez-Balderas, 

, 982 (5th Cir. 1997). The district court’s
decision whether to reduce a sentence is reviewed for an abuse of discretion; the
court’s interpretation of the Guidelines is reviewed de novo. United States v.
Doublin, 

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

(2009).
      “The crack cocaine guideline amendments do not apply to prisoners
sentenced as career offenders.” United States v. Anderson, 

, 791
(5th Cir. 2009). The district court thus did not abuse its discretion in denying
Thomas’s § 3582(c)(2) motion. See 

Further, the Supreme Court’s
decision in United States v. Booker, 

(2005), is not applicable to
§ 3582(c)(2) proceedings. 

.
      The Government’s motion for summary affirmance is GRANTED. The
alternative motion for an extension of time is DENIED as unnecessary.
      AFFIRMED.




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