IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40631

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RODRICK CHAD RUSSELL,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:07-CR-180-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Rodrick Chad Russell, federal prisoner # 13708-078, appeals the district

court’s denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his

sentence for possession with intent to distribute five grams or more of cocaine

base. The Government has moved for summary affirmance or, in the

alternative, for an extension of time to file a brief.

Russell argues that the district court abused its discretion in failing to

reduce his sentence by two levels under the November 1, 2007, crack cocaine

United States Court of Appeals

Fifth Circuit

F I L E D

October 29, 2010

Lyle W. Cayce

Clerk

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: 09-40631 Document: 00511279226 Page: 1 Date Filed: 10/29/2010
No. 09-40631

amendments to the Sentencing Guidelines, including Amendment 706.

However, Russell was sentenced pursuant to Amendments 706 and 711, both of

which became effective on November 1, 2007, before his sentencing.

Additionally, to the extent that Russell’s argument is liberally construed to

contend that his sentence should be reduced under Amendment 715, which

became effective on November 1, 2008, the application of the amendment would

not have affected his guidelines range, and thus he is not entitled to a sentence

reduction pursuant to § 3582(c)(2) on this basis. See United States v. Doublin,

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

§ 1B1.10(a), p.s.

Liberally construed, Russell’s brief also argues that the drug quantity for

which he was held accountable and the two-level increase in his offense level

pursuant to U.S.S.G. § 2D1.1(b)(1) were erroneously based on charges that were

later dismissed and were calculated in violation of United States v. Booker, 543

U.S. 220 (2005), based on facts that were not charged in the indictment.

However, a motion under § 3582(c)(2) “is not a second opportunity to present

mitigating factors to the sentencing judge, nor is it a challenge to the

appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d

1007, 1011 (5th Cir. 1995). Furthermore, this court has recognized that Booker

did not alter the mandatory character of § 1B1.10’s limitations on sentence

reductions. See Doublin, 572 F.3d at 238. Therefore, these claims are not

cognizable in a § 3582(c)(2) motion. See Whitebird, 55 F.3d at 1011; United

States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462

(2010).

In light of the foregoing, Russell has not shown that the district court

abused its discretion in denying his § 3582(c)(2) motion. See Evans, 587 F.3d at

672. The motion for summary affirmance is GRANTED, the judgment of the

district court is AFFIRMED, and the Government’s alternative motion for an

extension of time is DENIED as unnecessary.

2

Case: 09-40631 Document: 00511279226 Page: 2 Date Filed: 10/29/2010