USA v. Jacob Black

Filing 920100422

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Case: 09-30704 Document: 00511086633 Page: 1 Date Filed: 04/20/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-30704 Conference Calendar April 20, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JACOB CHARLES BLACK, also known as Jacob Carter, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:01-CR-20121-1 Before SMITH, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Jacob Charles Black, federal prisoner # 13500-179, appeals the district court's denial of his 18 U.S.C. 3582(c)(2) motion to reduce his sentence based on the amendments to the crack cocaine Guideline. He argues that the district court erred and abused its discretion by denying his motion because he would not be considered a career offender under U.S.S.G. 4B1.1 if he were resentenced now because his prior conviction for delivery of a controlled substance is no longer considered a predicate felony under 4B1.1. He asserts 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30704 Document: 00511086633 Page: 2 No. 09-30704 Date Filed: 04/20/2010 that United States v. Booker, 543 U.S. 220 (2005), should apply in 3582(c)(2) proceedings, allowing the district court to recalculate the guidelines range and to determine an appropriate sentence based upon the factors set forth in 18 U.S.C. 3553(a). Black acknowledges that his argument is foreclosed, but he raises it to preserve it for further review. He also argues that he is eligible for relief because, in the determination that he should be sentenced as a career offender, the offense level under 4B1.1 was compared to the offense level under U.S.S.G. 2D1.1, and therefore his sentence is based on a sentencing range that has subsequently been lowered within the meaning of 3582(c)(2). Black may not use a 3582(c)(2) motion to relitigate whether he is a career offender under 4B1.1. See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). As he acknowledges, his assertion that Booker should apply to 3582(c)(2) proceedings is foreclosed. See United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Further, the district court did not abuse its discretion by denying relief because "[t]he crack cocaine guideline amendments do not apply to prisoners sentenced as career offenders." United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009). AFFIRMED. 2

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