Opinion
No. 09-4745-cr.
September 19, 2011.
Appeal from the United States District Court for the Eastern District of New York (Spatt, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Jonathan I. Edelstein, Edelstein Grossman, New York, N.Y., for Defendant-Appellant.
Richard T. Lunger (Emily Berger, of counsel), Assistant United States Attorney, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Appellee.
SUMMARY ORDER
Defendant-Appellant Ernest Lucas appeals from a June 5, 2009 order of the United States District Court for the Eastern District of New York (Spatt, J.) denying his motion for resentencing pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10. We assume the parties' familiarity with the underlying facts and procedural history of this case.
Defendant contends that the district court erred in concluding that he was ineligible for resentencing. Defendant was convicted of distribution and possession with intent to distribute five or more grams of cocaine base. Although the sentencing guidelines pertaining to crack cocaine offenses were subsequently amended to lower the applicable base offense levels, defendant was sentenced under the career offender guideline, which remains unchanged. Accordingly, his argument is squarely foreclosed by this Court's decision in United States v. Martinez, 572 F.3d 82 (2d Cir. 2009) (per curiam), which held that "a defendant convicted of crack cocaine offenses but sentenced as a career offender under U.S.S.G. § 4B1.1 is not eligible to be resentenced under the amendments to the crack cocaine guidelines." 572F.3d at 85.
We have considered Lucas's remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.