Case: 08-50935 Document: 00511328612 Page: 1 Date Filed: 12/21/2010




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

                                                 FILED
                                                                         December 21, 2010
                                     No. 08-50935
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SAMUEL JAMELLE TUBBS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:03-CR-41-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Samuel Jamelle Tubbs, federal prisoner # 27194-180, represented by
appointed counsel, appeals from the district court’s denial of his pro se 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on the crack cocaine
amendments to the Sentencing Guidelines. The district court’s denial of Tubbs’s
motion is reviewed for an abuse of discretion, and its interpretation of the
Guidelines is reviewed de novo. See United States v. Evans, 

, 672
(5th Cir. 2009), cert. denied, 

(2010).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50935 Document: 00511328612 Page: 2 Date Filed: 12/21/2010

                                  No. 08-50935

      Tubbs’s guidelines range was not derived from the quantity of crack
cocaine involved in the offense but from his career offender status. “The crack
cocaine guideline amendments do not apply to prisoners sentenced as career
offenders.” See United States v. Anderson, 

, 791 (5th Cir. 2009).
Accordingly, the district court did not err in determining that a reduction was
not permitted under § 3582(c)(2) and did not abuse its discretion in denying a
sentence reduction. See 

that the district court should
have applied the Guidelines in an advisory manner is unavailing. See Dillon v.
United States, 

, 2691-94 (2010); United States v. Doublin,

, 238-39 (5th Cir.), cert. denied, 

(2009).
      Tubbs challenges the district court’s failure to appoint counsel for him in
the district court proceeding. In United States v. Whitebird, 

,
1010-11 (5th Cir. 1995), this court held that a § 3582(c)(2) movant had no right
to the appointment of counsel in the district court. Further, because Tubbs was
not eligible for relief under § 3582(c)(2) due to his career offender status, the
appointment of counsel was not warranted in the interest of justice. Cf. United
States v. Robinson, 

, 1052 (5th Cir. 2008) (appointing counsel in
the interest of justice due to complexity of § 3582(c)(2) motion).
      Tubbs also challenges his status as a career offender. A § 3582(c)(2)
motion may not be used to challenge a district court’s calculation of an original
sentence or to contest the appropriateness of the sentence. 

; 

. Thus, Tubbs’s challenge to his status as a
career offender is not cognizable in a § 3582(c)(2) motion. See 

.
      Tubbs has not shown error in either the denial of his § 3582(c)(2) motion
or in the denial of his request for counsel in the district court. Accordingly, the
judgment of the district court is AFFIRMED.




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