Case: 09-40539 Document: 00511029731 Page: 1 Date Filed: 02/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2010
No. 09-40539
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSEPH THOMAS, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:94-CR-16-1
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Joseph Thomas, Jr., federal prisoner # 04789-078, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based
on the retroactive amendments to the crack cocaine guidelines. The Government
moves for summary affirmance, arguing that Thomas was ineligible for relief
under § 3582(c)(2) because he was sentenced as a career offender, pursuant to
U.S.S.G. § 4B1.1, and not under the crack 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40539 Document: 00511029731 Page: 2 Date Filed: 02/18/2010
No. 09-40539
Because Thomas’s guideline range was not derived from the quantity of
crack cocaine involved in the offense, but rather from his career offender status,
the district court was correct in concluding that Thomas was not eligible for a
sentence reduction under § 3582(c)(2). Thomas may not use a § 3582(c)(2)
motion as a challenge to 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).
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 as unnecessary.
2