USA v. Kates

Filing 920091026

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-10045 Summary Calendar October 26, 2009 Charles R. Fulbruge III 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 KING, STEWART and HAYNES, Circuit Judges. PER CURIAM:* David Earl Kates, federal prisoner # 30428-077, appeals the district court's order denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c). Kates was convicted by a jury of possession with intent to distribute cocaine base. Kates argues that he is entitled to have his sentence reduced pursuant to Amendment 709, which addressed two areas of the Guidelines' criminal history rules. Kates does not dispute that the amendment went into effect after he was

Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4.

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No. 09-10045 sentenced and that it is not listed by the Sentencing Commission's policy statement in U.S.S.G. § 1B1.10 as a guideline amendment that applies retroactively. He argues, however, that the district court was not limited by the Guidelines' list of retroactively applicable amendments because, after United States v. Booker, 543 U.S. 220 (2005), the Guidelines are advisory. We review the district court's denial of Kates's § 3582(c) motion for abuse of discretion. United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).

Amendment 709, on which Kates relies for his § 3582(c) motion, is not listed as an amendment covered by the policy statement in § 1B1.10. See § 1B1.10(c). Therefore, the plain language of § 3582(c) dictated that the district court was not authorized to reduce a sentence based on Amendment 709 because that would be inconsistent with Sentencing Commission policy. See § 1B.10, comment. (n.1); § 3582(c)(2). Moreover, this court has held that "Booker does not alter the mandatory character of § 1B1.10's limitations on sentence reductions." United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). Kates has not shown that the district court abused its discretion in denying his § 3582(c) motion. AFFIRMED.

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