Case: 08-41176 Document: 00511278776 Page: 1 Date Filed: 10/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2010
No. 08-41176
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LAWRENCE DARRELL MASK,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:98-CR-72-2
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lawrence Darrell Mask, federal prisoner # 08536-078, appeals the district
court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) based on the amendment of the crack cocaine Guidelines. Mask
argues that the district court’s denial of his motion to reduce his sentence was
contrary to United States v. Booker, 543 U.S. 220 (2005), Rita v. United States,
551 U.S. 338, 364 (2007), Gall v. United States, 552 U.S. 38, 51 (2007),
Kimbrough v. United States, 552 U.S. 85, 108-10 (2007), and Spears v. United
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 08-41176 Document: 00511278776 Page: 2 Date Filed: 10/29/2010
No. 08-41176
States, 129 S. Ct. 840 (2009). He argues that 28 U.S.C. § 994 does not require
courts to impose the statutory maximum sentence. Mask contends that the
district court should have recalculated his advisory guidelines range in accord
with Booker and without the two-level firearm enhancement; that the district
court was free to disagree with the crack cocaine guidelines provision; and that
the district court erred in not considering his postsentence rehabilitation.
Contrary to Mask’s argument, this court’s precedent forecloses his
assertion that the career offender Guideline does not preclude a reduction of his
sentence. See United States v. Anderson, 591 F.3d 789, 790 & n.4, 791 & n.8 (5th
Cir. 2009). His arguments based on Booker and its progeny are foreclosed by
Dillon v. United States, 130 S. Ct. 2683, 2692 (2010), and United States v.
Doublin, 572 F.3d 235, 236-29 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009).
Further, Spears is distinguishable because it did not involve a § 3582(c)(2)
motion. See Spears, 129 S. Ct. at 841-45.
Mask’s argument that the district court should have resentenced him
without the two-level firearm enhancement is incorrect. A motion under
§ 3582(c)(2) “is not a second opportunity to present mitigating factors to the
sentencing judge, nor is it a challenge to the appropriateness of the original
sentence.” United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).
Therefore, this claim is not cognizable in a § 3582 motion. See United States v.
Evans, 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time in which to file a brief
is DENIED.
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