United States v. Earl Williams, Jr. , 368 F. App'x 541 ( 2010 )

Case: 09-40469 Document: 00511040958 Page: 1 Date Filed: 03/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2010
No. 09-40469
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EARL WILLIAMS, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-106-20
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Earl Williams, Jr., federal prisoner # 11541-078, pleaded guilty pursuant
to an agreement to one count of conspiracy to possess with intent to distribute
cocaine base. The probation officer recommended sentencing Williams as a
career offender pursuant to U.S.S.G. § 4B1.1. At sentencing, the district court
accepted the parties’ stipulation in the agreement that Williams would be
sentenced based upon a quantity of crack not less than five grams but no more
than 20 grams. Williams appeals the district court’s denial of his pro se motion
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40469 Document: 00511040958 Page: 2 Date Filed: 03/03/2010
No. 09-40469
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court
denied Williams’s motion on the basis that he was ineligible since he was a
career offender. The Government has moved for summary affirmance, arguing
that because Williams was sentenced as a career offender, he was not eligible for
relief under § 3582(c).
Because Williams’s guideline 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). This court will not consider Williams’s argument
that he was not sentenced as a career offender since he raises it for the first time
in his response to the Government’s motion. See Yohey v. Collins, 985 F.2d 222,
225, 227 (5th Cir. 1993); see also United States v. Prince, 868 F.2d 1379, 1386
(5th Cir. 1989). To the extent Williams contends that he is entitled to a
reduction under § 3582(c)(2) since the amended guideline ranges are advisory
under the principles set forth in United States v. Booker, 543 U.S. 220 (2005), his
argument is foreclosed. See United States v. Doublin, 572 F.3d 235, 238 (5th
Cir.), cert. denied, 130 S. Ct. 517 (2009).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court 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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