Pursuant to Fifth Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Fifth Circuit Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10393

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RUSTY WAYNE ROBERTS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:04-CR-18-ALL

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Rusty Wayne Roberts, federal prisoner # 32715-177, was convicted of

possessing with the intent to distribute methamphetamine, in violation of 21

U.S.C. § 841(a), and possessing a firearm with an obliterated serial number, in

violation of 18 U.S.C. § 922(k). He now appeals the district court’s denial of his

18 U.S.C. § 3582(c)(2) motion, seeking a two-level sentencing reduction based on

the retroactive Amendment 706 to the crack cocaine guidelines. The district

United States Court of Appeals

Fifth Circuit

F I L E D

March 13, 2009

Charles R. Fulbruge III

Clerk
No. 08-10393

2

court denied the motion on the ground that Roberts’ offense of conviction did not

involve, and his sentence was not based upon, crack cocaine. We review the

district court’s denial of a § 3582(c)(2) motion for abuse of discretion. United

States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).

Roberts renews his argument that he was entitled to a sentencing

reduction based on the retroactive crack cocaine amendments, asserting that his

sentence was based on crack cocaine. Although the presentence report (PSR)

indicates that Roberts’ offense level was initially calculated based upon

quantities of numerous drugs, including crack cocaine, the Addendum to the

PSR recalculated his offense level based solely on methamphetamine and powder

cocaine, and the sentence imposed was based only on quantities of those drugs.

As the district court correctly determined, because Roberts’ guidelines range was

not derived from a quantity of crack cocaine, he was not “sentenced to a term of

imprisonment based on a sentencing range that ha[d] subsequently been lowered

by the Sentencing Commission.” See § 3582(c)(2). Roberts’ claim that the

district court had the discretion to reduce his sentence in light of United States

v. Booker, 543 U.S. 220 (2005), and his post conviction rehabilitative efforts is

not cognizable in a § 3582(c)(2) motion. See § 3582(c)(2); see also United States

v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994) (“[Section 3582(c)(2)] only applies to

retroactive guideline amendments.”). Roberts’ argument that the sentence

imposed is unreasonable because the district court failed to consider the 18

U.S.C. § 3553(a) factors is similarly not properly brought in this appeal from the

denial of a § 3582(c)(2) motion. See United States v. Whitebird, 55 F.3d 1007,

1011 (5th Cir. 1995).

Accordingly, the district court’s judgment is affirmed. Roberts’ motion for

the production of the sentencing transcript at Government expense is denied as

moot because the district court already granted it.

AFFIRMED; MOTION DENIED AS MOOT.