No. 08-41176 Summary Calendar.United States Court of Appeals, Fifth Circuit.
October 29, 2010.
Maureen Clancy Smith, Assistant Attorney, U.S. Attorney, U.S. Attorney’s Office Eastern District of Texas, Sherman, TX, for Plaintiff-Appellee.
G. Patrick Black, Federal Public Defender, Federal Defender’s Office Eastern District of Texas, Tyler, TX, for 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Rita v. United States, 551 U.S. 338, 364, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Kimbrough v. United States, 552 U.S. 85, 108-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), an Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (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
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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, ___ U.S. ___, ___, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010), an United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 517, 175 L.Ed.2d 366 (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, ___ U.S. ___, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (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.