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

                                                 FILED
                                                                         December 23, 2009
                                     No. 09-40162
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

KEVIN DUKE

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                    USDC No. 1:01-CR-257-1 & 1:01-CR-201-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Kevin Duke, federal prisoner # 09210-078, appeals the district court’s
denial of his 18 U.S.C. § 3582(c) motion to reduce his concurrent 262-month
sentences for possession with intent to distribute cocaine base. Duke questions
the propriety of his sentencing as a career offender and argues that § 3582(c) is
applicable to his sentences based upon the amendments to the crack cocaine
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                No. 09-40162

      Duke may not use a § 3582(c)(2) motion to challenge 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). Moreover, because Duke’s sentences were based on
his prior convictions and not on the quantity of crack cocaine, he was not
“sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” See § 3582(c)(2);
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997).
      The district court’s judgment is AFFIRMED, the Government’s motion for
summary affirmance is GRANTED, and the Government’s motion for an
extension of time is DENIED as moot.




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