USA v. Joseph Thomas, Jr.

Filing 920100218

Case: 09-40539

Document: 00511029731

Page: 1

Date Filed: 02/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-40539 Summary Calendar February 18, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSEPH THOMAS, JR., Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:94-CR-16-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Joseph Thomas, Jr., federal prisoner # 04789-078, appeals the district court's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on the retroactive amendments to the crack cocaine guidelines. The Government moves for summary affirmance, arguing that Thomas was ineligible for relief under § 3582(c)(2) because he was sentenced as a career offender, pursuant to U.S.S.G. § 4B1.1, and not under the crack guidelines.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40539

Document: 00511029731 Page: 2 No. 09-40539

Date Filed: 02/18/2010

Because Thomas's guideline range was not derived from the quantity of crack cocaine involved in the offense, but rather from his career offender status, the district court was correct in concluding that Thomas was not eligible for a sentence reduction under § 3582(c)(2). Thomas may not use a § 3582(c)(2) motion as a challenge to the appropriateness of the district court's application of a career offender enhancement in its calculation of his original sentences. See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). 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 as unnecessary.

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