USA v. Mask

Filing

UNPUBLISHED OPINION FILED. [08-41176 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/19/2010; granting motion for summary affirmance filed by Appellee USA [6244873-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6244873-3] [08-41176]

USA v. Mask

Case: 08-41176 Document: 00511278776 Page: 1 Date Filed: 10/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-41176 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. L A W R E N C E DARRELL MASK, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:98-CR-72-2

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* L a w r e n c e Darrell Mask, federal prisoner # 08536-078, appeals the district c o u r t'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 a r g u e s that the district court's denial of his motion to reduce his sentence was c o n t r a r y to United States v. Booker, 543 U.S. 220 (2005), Rita v. United States, 5 5 1 U.S. 338, 364 (2007), Gall v. United States, 552 U.S. 38, 51 (2007), K im b r o u g h 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 08-41176 Document: 00511278776 Page: 2 Date Filed: 10/29/2010 No. 08-41176 S ta te s , 129 S. Ct. 840 (2009). He argues that 28 U.S.C. § 994 does not require c o u r ts to impose the statutory maximum sentence. Mask contends that the d is t r ic t court should have recalculated his advisory guidelines range in accord w it h Booker and without the two-level firearm enhancement; that the district c o u r t was free to disagree with the crack cocaine guidelines provision; and that t h e district court erred in not considering his postsentence rehabilitation. C o n t r a r y to Mask's argument, this court's precedent forecloses his a s s e r t io n that the career offender Guideline does not preclude a reduction of his s e n te n c e . See United States v. Anderson, 591 F.3d 789, 790 & n.4, 791 & n.8 (5th C ir . 2009). His arguments based on Booker and its progeny are foreclosed by D illo n v. United States, 130 S. Ct. 2683, 2692 (2010), and United States v. D o u b lin , 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) m o t io n . See Spears, 129 S. Ct. at 841-45. M a s k 's argument that the district court should have resentenced him w it h o u t the two-level firearm enhancement is incorrect. A motion under § 3582(c)(2) "is not a second opportunity to present mitigating factors to the s e n te n c in g judge, nor is it a challenge to the appropriateness of the original s e n te n c e ." 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. E v a n s , 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). A c c o r d in g ly , the Government's motion for summary affirmance is G R A N T E D , and the judgment of the district court is AFFIRMED. The

G o v e r n m e n t 's alternative motion for an extension of time in which to file a brief is DENIED.

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