United States v. Kenneth Mallory , 376 F. App'x 361 ( 2010 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
2