     Case: 09-40193     Document: 00511086707          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. 09-40193
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KENNETH WAYNE MALLORY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 4:04-CR-106-24


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Kenneth Wayne Mallory, federal prisoner # 11482-078, 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. The Government moves for
summary affirmance, arguing that Mallory was ineligible for relief under
§ 3582(c)(2) because he was sentenced not under the crack cocaine Guideline but
as a career offender, pursuant to U.S.S.G. § 4B1.1.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40193   Document: 00511086707 Page: 2        Date Filed: 04/20/2010
                                No. 09-40193

      Because Mallory’s guidelines imprisonment 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 a sentencing
reduction was not permitted. See § 3582(c)(2); United States v. Anderson, 591
F.3d 789, 790-91 (5th Cir. 2009). Mallory argues that, in light of United States
v. Booker, 543 U.S. 220 (2005), the district court should have the authority
pursuant to § 3582(c)(2) to reduce his term of imprisonment notwithstanding his
status as a career offender. This argument is foreclosed by United States v.
Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009).
Mallory concedes that his argument is foreclosed by Doublin but seeks to
preserve the argument for possible Supreme Court review.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment 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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