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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30084

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SHAUN WATERS,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CR-354-1

Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Shaun Waters, federal prisoner # 29998-034, appeals the denial of his 18

U.S.C. § 3582(c)(2) motion for a reduction of sentence based on the 1 November

2007, retroactive amendments to Guideline § 2D1.1, pertaining to crack-cocaine

offenses. Waters was convicted and sentenced to, inter alia, 170 months’

imprisonment for conspiring to distribute and possess with the intent to

distribute cocaine, cocaine base, and heroin.

United States Court of Appeals

Fifth Circuit

F I L E D

January 6, 2010

Charles R. Fulbruge III

Clerk
No. 09-30084

2

“Section 3582(c)(2) permits a district court to reduce a term of

imprisonment 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, 105 F.3d 981, 982 (5th Cir. 1997). A

sentence reduction is not consistent with the Guidelines policy statement and,

therefore, is not authorized by § 3582(c)(2), if the retroactive amendment does not

have the effect of lowering the defendant’s applicable guideline range. U.S.S.G.

§ 1B1.10(a)(2)(B). 

Waters’ § 3582 motion was denied because the district court decided that,

under the Guidelines, it could not reduce Waters’ sentence due to his careeroffender status. That decision is reviewed de novo. United States v. Doublin, 572

F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009).

Waters contends: the district court erred because Waters was sentenced

under § 2D1.1, based on the quantity of drugs relevant to his offense, rather than

under § 4B1.1(a), as a career offender. The presentence investigation report

(PSR), to which Waters did not object, was adopted without change by the district

court. Although the PSR stated that Waters was a career offender, it did not

apply the offense level mandated by that Guideline because the offense level was

not greater than the otherwise applicable offense level calculated under § 2D1.1.

If Waters’ base-offense level were reduced pursuant to the amended version

of § 2D1.1, the offense level for a career offender under § 4B1.1(b)(C) would

become applicable. With a career-offender base-offense level of 32, a total offense

level of 29 after the three-level reduction for acceptance of responsibility, and a

criminal history category of VI, Waters would be subject to the same advisory

guideline range upon which his original sentence was imposed. 

In sum, application of the amendments would not lower Waters’ applicable

guideline range. Therefore, the district court did not err in denying a reduction

of sentence. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B).
No. 09-30084

3

AFFIRMED.