     Case: 09-30704     Document: 00511086633          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. 09-30704
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JACOB CHARLES BLACK, also known as Jacob Carter,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:01-CR-20121-1


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jacob Charles Black, federal prisoner # 13500-179, 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. He argues that the district
court erred and 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 asserts

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30704    Document: 00511086633 Page: 2        Date Filed: 04/20/2010
                                 No. 09-30704

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 range and
to determine an appropriate sentence based upon the factors set forth in 18
U.S.C. § 3553(a). Black acknowledges that his argument is foreclosed, but he
raises it to preserve it for further review. He also argues that he is eligible for
relief because, in the determination that he should be sentenced as a career
offender, the offense level under § 4B1.1 was compared to the offense level under
U.S.S.G. § 2D1.1, and therefore his sentence is based on a sentencing range that
has subsequently been lowered within the meaning of § 3582(c)(2).
      Black 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 he 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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