     Case: 09-30636     Document: 00511086601          Page: 1    Date Filed: 04/20/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 20, 2010
                                     No. 09-30636
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARVIN EUGENE CHAPPELL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 3:03-CR-30013-3


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Marvin Eugene Chappell, federal prisoner # 11775-035, 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. Chappell argues that
the district court 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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30636    Document: 00511086601 Page: 2         Date Filed: 04/20/2010
                                 No. 09-30636

maintains that the failure of the district court to acknowledge the current state
of the law in the present § 3582(c)(2) proceeding continued the unconstitutional
effect of the mandatory guidelines under which he was sentenced. He asserts
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 sentence
range and then determine an appropriate sentence based upon the factors set
forth in 18 U.S.C. § 3553(a). Chappell acknowledges that his argument is
foreclosed, but he raises it to preserve it for further review. As an alternative to
his contention that he would no longer be considered a career offender, Chappell
contends that he is eligible for relief because, even as a career offender, the
offense level under § 4B1.1 was compared to the offense level under U.S.S.G.
§ 2D1.1 that has been lowered by the crack cocaine amendments, and therefore
his sentence, in the language of § 3582(c)(2), is “based on a sentencing range that
has subsequently been lowered.” Chappell acknowledges that this argument is
also foreclosed, and he raises it to preserve it for further review.
      Chappell 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 Chappell 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.




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