IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10600

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GEORGE GIRARD JOHNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:04-CR-41-2

Before KING, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:

*

George Girard Johnson, federal prisoner # 32988-177, pleaded guilty to

conspiracy to distribute, possess with intent to distribute, and manufacture 50

grams or more of cocaine base. The district court sentenced Johnson to 235

months of imprisonment, a sentence below the guidelines sentence range, based

upon a joint request by Johnson and the Government. He appeals the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence.

United States Court of Appeals

Fifth Circuit

F I L E D

November 30, 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. 08-10600

Section 3582(c)(2) permits the discretionary modification of a defendant’s

sentence where the sentencing range is later lowered by the Sentencing

Commission. See § 3582(c)(2). We review the district court’s denial of a

§ 3582(c)(2) motion for abuse of discretion. United States v. Doublin, 572 F.3d

235, 237 (5th Cir. 2009).

Johnson argues that the district court abused its discretion by denying his

§ 3582(c)(2) motion simply because his sentence was within the amended

guidelines range. He maintains that he should have received a sentence 10%

below the amended guidelines range because his sentence was approximately

10% below the original guidelines range and that the district court should have

considered the continuing discrepancy between crack and power cocaine

sentences as noted by the Supreme Court in Kimbrough v. United States, 552

U.S. 85 (2007). Johnson further maintains that United States v. Booker, 543

U.S. 220 (2005), applies to § 3582(c)(2) proceedings and that the district court

erred by considering the Guidelines to be mandatory.

Because Johnson was sentenced shortly after the opinion in Booker was

issued, the probation officer prepared two different guidelines sentence range

calculations. The original calculations were prepared normally, but the

supplemental calculations considered only conduct that Johnson had admitted.

At sentencing, the district court did not clearly indicate which guidelines

sentence range calculations that it had adopted. Johnson has not shown that the

district court abused its discretion by denying his § 3582(c)(2) motion whether

the district court adopted the original or supplemental guidelines sentence range

calculations.

In the presentence report, the probation officer found that Johnson was

responsible for over 4.5 kilograms of cocaine base, and this figure was reflected

in the original guidelines sentence range calculations. Thus, if the district court

adopted the original guidelines sentence range calculations, Johnson was

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No. 08-10600

ineligible for a sentence reduction because Amendment 706 did not lower his

offense level. See Amend. 706; § 2D1.1(c)(1).

In his factual resume, Johnson admitted that he was responsible for 1.5

kilograms of cocaine base. This is the drug quantity upon which the

supplemental guidelines sentence range calculations were based. Under these

calculations, Johnson’s sentence of 235 months of imprisonment falls within the

amended guidelines sentence range. In denying Johnson’s § 3582(c)(2) motion,

the district court acknowledged that Johnson’s sentence was within the amended

guidelines range, and it specifically ruled that Johnson’s sentence was

appropriate based upon the 18 U.S.C. § 3553(a) sentencing factors. Given these

circumstances, Johnson has not shown that the district court abused its

discretion by denying his § 3582(c)(2) motion. See United States v. Cooley, 590

F.3d 293, 297 (5th Cir. 2009). Contrary to Johnson’s assertion, Booker is not

applicable in § 3582(c)(2) proceedings. See Doublin, 572 F.3d at 237-39.

AFFIRMED.

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