Case: 12-10041 Document: 00511941311 Page: 1 Date Filed: 08/01/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 1, 2012
No. 12-10041
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID EARL KATES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:97-CR-42-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
David Earl Kates, federal prisoner # 30428-077, appeals the denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence in light of Amendment 750
to the Sentencing Guidelines. The district court’s decision whether to reduce a
sentence under § 3582(c)(2) is reviewed for an abuse of discretion, while the
court’s interpretation of the Guidelines is reviewed de novo. United States v.
Evans, 587 F.3d 667, 672 (5th Cir. 2009). Section 3582(c)(2) permits the
discretionary modification of a defendant’s sentence “in the case of a defendant
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10041 Document: 00511941311 Page: 2 Date Filed: 08/01/2012
No. 12-10041
who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o).” § 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237
(5th Cir. 2009).
Kates was convicted by a jury of possession with intent to distribute
cocaine base and was sentenced to 360 months in prison. The district court
found that the retroactive guidelines amendment would not reduce Kates’s total
offense level because he was sentenced as a career offender. Kates has identified
no error in this finding. His principal argument is that the district court should
have gone below the advisory range to correct the unwarranted sentencing
disparity between crack and powder cocaine offenses. In the context of a
§ 3582(c)(2) motion, a sentencing court lacks discretion to reduce a sentence
further than the reduction allowed pursuant to U.S.S.G. § 1B1.10 of the
Sentencing Guidelines. Doublin, 572 F.3d at 238. Kates’s argument is
unavailing, and the judgment of the district court is AFFIRMED.
2