IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50332

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ERVIN DARRELL GARNETT,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:99-CR-86-ALL

Before JOLLY, GARZA and STEWART, Circuit Judges.

PER CURIAM:

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Ervin Darrell Garnett, federal prisoner # 95121-080, appeals the district

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

sentence. Garnett argues that he is entitled to a sentence reduction under

§ 3582(c)(2) based on Amendments 706 and 711 to the United States Sentencing

Guidelines. He asserts that the district court abused its discretion by using

marijuana equivalents to determine his base offense level because the marijuana

conversion table contravenes the purpose of Amendment 706. He also asserts

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 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.

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No. 08-50332

that the district court should have been unrestricted in its discretion to reduce

his sentence based on the factors set forth in 18 U.S.C. § 3553(a).

The district court’s decision whether to reduce a sentence pursuant to

§ 3582(c)(2) is reviewed for abuse of discretion, while its interpretation or

application of the Guidelines is reviewed de novo. United States v. Evans, 587

F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). However,

Garnett did not challenge in the district court the utility of the marijuana

conversion table, nor did he raise his argument concerning the district court’s

discretion based on the § 3553(a) factors; these arguments, therefore, are

reviewed for plain error. See United States v. Jones, 596 F.3d 273, 276 (5th Cir.

2010), cert. denied, 2010 WL 1848457 (Oct. 4, 2010) (No. 09-10607); Puckett v.

United States, 129 S. Ct. 1423, 1429 (2009).

Garnett has not established that the district court erred in denying his

§ 3582(c)(2) motion. Because Garnett was accountable for more than 4.5

kilograms of cocaine base, he was ineligible for a sentence reduction based upon

the crack cocaine amendments. See U.S.S.G. § 2D1.1(c)(1) & comment.

(n. 10(D)(ii)). His base offense level consequently was not modified, and his

advisory guidelines range was not lowered as a result of the amendments. Thus,

the district court did not abuse its discretion in determining that Garnett was

ineligible for a sentence reduction under § 3582(c)(2). See Evans, 587 F.3d at

672.

To the extent that Garnett seeks to challenge the calculation of the

relevant drug quantity at his initial sentencing, that issue is beyond the scope

of the guideline amendment and is not cognizable in a § 3582(c)(2) proceeding.

See id. at 674. Accordingly, Garnett cannot show error, much less plain error,

concerning this issue. See Jones, 596 F.3d at 276; Puckett, 129 S. Ct. at 1429.

Garnett also cannot establish clear or obvious error with respect to his

contentions that Gall v. United States, 552 U.S. 38 (2007), Kimbrough v. United

States, 552 U.S. 85 (2007), and Booker v. United States, 543 U.S. 220 (2005)

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should apply in § 3582(c)(2) proceedings and that the district court should have

been unrestricted in its discretion to resentence him under the § 3553(a) factors.

See Jones, 596 F.3d at 276; Puckett, 129 S. Ct. at 1429. The Supreme Court’s

decision in Booker does not apply to sentence reductions under § 3582(c)(2)

because such proceedings are not full resentencings. United States v. Doublin,

572 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). Garnett’s argument based on

Booker and its progeny is therefore unavailing.

AFFIRMED.

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