     Case: 12-20126       Document: 00512163855         Page: 1     Date Filed: 03/05/2013




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

                                                                            FILED
                                                                           March 5, 2013
                                     No. 12-20126
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

EDWARD LIONEL BLAKE,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:98-CR-215-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Edward Lionel Blake, federal prisoner #79357-079, was convicted of
conspiracy to possess with intent to distribute cocaine base and aiding and
abetting the possession with intent to distribute cocaine base; he was sentenced
to 360 months of imprisonment. He now appeals the denial of his motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Blake argues that the
district court failed to allow him an opportunity to respond to an addendum to
his presentence report (PSR) and that it erred in determining that his status as

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20126     Document: 00512163855     Page: 2   Date Filed: 03/05/2013

                                  No. 12-20126

a career offender at sentencing made him ineligible for a reduction of sentence
pursuant to Amendment 750 to the United States Sentencing Guidelines. Blake
also moves for the appointment of counsel for purposes of presenting oral
argument.
      If a district court relies on new evidence in a § 3582(c)(2) proceeding, the
defendant is entitled to notice and an opportunity to respond. United States v.
Mueller, 168 F.3d 186, 189 (5th Cir. 1999). If the district court did consider it
without giving Blake an opportunity to respond, this would be error. See id.
Nevertheless, reversal is not required in this case because any error was
harmless. The PSR Addendum merely set forth facts regarding Blake’s original
sentencing and it is almost identical to a PSR Addendum prepared in response
to Blake’s prior § 3582(c)(2) motion. In addition, Blake is not entitled to relief
under § 3582(c)(2).
      The record clearly establishes that Blake was sentenced as a career
offender and, as such, he is not eligible for relief under Amendment 750. See
United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009); see also Dillon v.
United States, 130 S. Ct. 2683, 2691 (2010). Contrary to Blake’s assertions, the
district court’s decision to order that his federal sentence run concurrently with
his undischarged state sentences did not constitute either a downward departure
or variance, and a sentence still is based on the career offender guideline even
when a downward departure or variance is granted.
      AFFIRMED; MOTION DENIED.




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