     Case: 12-10041     Document: 00511941311         Page: 1     Date Filed: 08/01/2012




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

                                                                            FILED
                                                                           August 1, 2012
                                     No. 12-10041
                                   Summary Calendar                        Lyle W. Cayce
                                                                                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 REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        David Earl Kates, federal prisoner # 30428-077, appeals the denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence in light of Amendment 750
to the Sentencing Guidelines. The district court’s decision whether to reduce a
sentence under § 3582(c)(2) is reviewed for an abuse of discretion, while the
court’s interpretation of the Guidelines is reviewed de novo. United States v.
Evans, 587 F.3d 667, 672 (5th Cir. 2009).               Section 3582(c)(2) permits the
discretionary modification of a defendant’s sentence “in the case of a defendant

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10041   Document: 00511941311      Page: 2   Date Filed: 08/01/2012

                                  No. 12-10041

who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o).” § 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237
(5th Cir. 2009).
      Kates was convicted by a jury of possession with intent to distribute
cocaine base and was sentenced to 360 months in prison. The district court
found that the retroactive guidelines amendment would not reduce Kates’s total
offense level because he was sentenced as a career offender. Kates has identified
no error in this finding. His principal argument is that the district court should
have gone below the advisory range to correct the unwarranted sentencing
disparity between crack and powder cocaine offenses. In the context of a
§ 3582(c)(2) motion, a sentencing court lacks discretion to reduce a sentence
further than the reduction allowed pursuant to U.S.S.G. § 1B1.10 of the
Sentencing Guidelines.     Doublin, 572 F.3d at 238.       Kates’s argument is
unavailing, and the judgment of the district court is AFFIRMED.




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