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. 08-50313

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TERRENCE DOYLE MITCHELL

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:04-CR-203-1

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

Terrence Doyle Mitchell, federal prisoner # 04106-180, appeals the district

court’s order denying his motion to modify his sentence pursuant to 18 U.S.C.

§ 3582(c). Mitchell pleaded guilty to possession with intent to distribute 500

grams or more of cocaine and possession of counterfeit currency.

Mitchell argues that he is entitled to have his sentence reduced pursuant

to Amendment 709, which addressed two areas of the Guidelines’ criminal

history rules. Mitchell concedes that the amendment went into effect after he

United States Court of Appeals

Fifth Circuit

F I L E D

September 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-50313

2

was sentenced and that it is not listed by the Sentencing Commission’s policy

statement in U.S.S.G. § 1B1.10 as a guideline amendment that applies

retroactively. He argues, however, that the district court was not limited by the

Guidelines’ list of retroactively applicable amendments because, after United

States v. Booker, 543 U.S. 220 (2005), the Guidelines are advisory. Mitchell

notes that Amendment 717 to the Guidelines recognizes that Booker rendered

the Guidelines advisory.

We review the district court’s denial of Mitchell’s § 3582(c) motion for

abuse of discretion. See United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).

Amendment 709, on which Mitchell relies for his § 3582(c) motion, is not listed

as an amendment covered by the policy statement in § 1B1.10. See § 1B1.10(c).

Therefore, the plain language of § 3582(c) dictated that the district court was not

authorized to reduce a sentence based on Amendment 709 because that would

be inconsistent with Sentencing Commission policy. See § 1B.10, comment. (n.1);

§ 3582(c)(2). Moreover, this court has held that “Booker does not alter the

mandatory character of § 1B1.10’s limitations on sentence reductions.”

See United States v. Doublin, ___ F. 3d ___, 2009 WL 1743661 (5th Cir. June 22,

2009). The district court’s judgment is affirmed.

Mitchell also asks this court to recall the mandate in appeal no. 05-50203

and to remand the case to the district court for an evidentiary hearing on his

claim that counsel’s alleged ineffective assistance caused the dismissal of his

direct appeal for want of prosecution. Mitchell’s request for a recall of the

mandate is beyond the scope of relief provided for under § 3582, and, in fact,

Mitchell expressly states that he is not seeking a recall of the mandate pursuant

to § 3582. While this court may recall a mandate to prevent injustice, see 5TH

CIR. R. 41.2, Mitchell’s request for such relief has not been properly presented

in the form of a motion to this court. See 5th Cir. R. 27. Accordingly, we do not

entertain in this appeal Mitchell’s request for a recall of the mandate.

AFFIRMED.