USA v. Aaron Boutte

Filing

UNPUBLISHED OPINION FILED. [09-30774 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 11/29/2010 [09-30774]

USA v. Aaron Boutte ase: 09-30774 C

Document: 00511287336 Page: 1 Date Filed: 11/08/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30774 S u m m a r y Calendar November 8, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A A R O N ALEXANDER BOUTTE, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 2:97-CR-20034-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A a ro n Alexander Boutte, federal prisoner # 09562-035, appeals the district c o u r t's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce the 324-month s e n t e n c e he received following his guilty plea conviction for conspiracy to d i s t r ib u t e and distribution of crack cocaine. Boutte contends that the district c o u r t's denial of his § 3582(c)(2) motion was error. Although he concedes that, b e c a u s e he was held accountable for more than 4.5 kilograms of crack cocaine, h is guidelines range was unaffected by the retroactive crack cocaine
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 09-30774 Document: 00511287336 Page: 2 Date Filed: 11/08/2010 No. 09-30774 a m e n d m e n t s , he nevertheless urges that Booker v. United States, 543 U.S. 220 (2 0 0 5 ), Kimbrough v. United States, 552 U.S. 85 (2007), and Gall v. United S ta te s , 552 U.S. 38 (2007), should apply in § 3582(c)(2) proceedings, allowing d is t r ic t courts to impose sentences lower than the two-level adjustment c o n t e m p la t e d by the crack cocaine amendments based on the factors set forth in 1 8 U.S.C. § 3553(a). We review the district court's decision for an abuse of discretion. United S ta te s v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). As Boutte concedes, because his o ffe n s e involved more than 4.5 kilograms of crack cocaine, the retroactive crack a m e n d m e n t does not lower his guidelines range, and the district court did not a b u s e its discretion in refusing to reduce his sentence. See § 3582(c)(2);

U.S.S.G. §§ 1B1.10, comment. (n.1A) and 2D1.1. Moreover, the Supreme Court's d e c is io n in Booker does not apply to sentence reductions under § 3582(c)(2) b e c a u s e such proceedings are not full resentencings. United States v. Doublin, 5 7 2 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v . United States, 130 S. Ct. 2683, 2691-93 (2010). Boutte's argument based on B o o k e r and its progeny is therefore unavailing. AFFIRMED.

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