Case: 12-30160     Document: 00512042157         Page: 1     Date Filed: 11/02/2012




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

                                                                            FILED
                                                                         November 2, 2012
                                     No. 12-30160
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSEPH ROBICHEAUX,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:98-CR-60027-2


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Joseph Robicheaux, federal prisoner # 70986-079, appeals the district
court’s denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based
upon the amendment to the Guidelines that implemented the Fair Sentencing
Act (FSA) of 2010. He argues that, even if his sentencing guidelines range was
not lowered by the amendment, the district court can, after Kimbrough v. United
States, 

(2007), reduce his sentence under § 3582(c)(2) based upon its
consideration of the 18 U.S.C. § 3553(a) factors and his post-sentencing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30160   Document: 00512042157     Page: 2   Date Filed: 11/02/2012

                                 No. 12-30160

rehabilitative efforts. The district court’s ruling is reviewed for an abuse of
discretion. United States v. Doublin, 

, 237 (5th Cir. 2009).
      Under the Guidelines, as amended by the FSA, Robicheaux’s base offense
level of 38 remained unchanged as he was held accountable for 35.6 kilograms
of cocaine base, and, after the amendment, a base offense level of 38 applies to
“8.4 KG or more of cocaine base.” See U.S.S.G. § 2D1.1(c)(1). Robicheaux was
thus ineligible for a sentence reduction because the amendment did not reduce
his guidelines range. See § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). Moreover, the
principles of United States v. Booker, 

(2005), and its progeny,
including Kimbrough, do not apply to § 3582(c)(2) proceedings. See United
States v. Dillon, 

, 2691-94 (2010); 

.
      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 in which to file a brief is DENIED as
unnecessary.




                                       2