USA v. Duke, No. 09-40162 (5th Cir. 2009)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40162 Summary Calendar December 23, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. KEVIN DUKE Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CR-257-1 & 1:01-CR-201-1 Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Kevin Duke, federal prisoner # 09210-078, appeals the district court s denial of his 18 U.S.C. § 3582(c) motion to reduce his concurrent 262-month sentences for possession with intent to distribute cocaine base. Duke questions the propriety of his sentencing as a career offender and argues that § 3582(c) is applicable to his sentences based upon the amendments to the crack cocaine guidelines. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 09-40162 Duke may not use a § 3582(c)(2) motion to challenge the appropriateness of the district court s application of a career offender enhancement in its calculation of his original sentences. See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Moreover, because Duke s sentences were based on his prior convictions and not on the quantity of crack cocaine, he was not sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. See § 3582(c)(2); United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The district court s judgment is AFFIRMED, the Government s motion for summary affirmance is GRANTED, and the Government s motion for an extension of time is DENIED as moot. 2

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