UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7672
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD SMITH, a/k/a Smitty, a/k/a
Dumptruck Smitty,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-90-71-R; CA-03-541-3)
Submitted: January 29, 2004 Decided: February 9, 2004
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Edward Smith, Appellant Pro Se. Gurney Wingate Grant, II,
Assistant United States Attorney, Amy Eileen Pope, Special
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Edward Smith appeals the district court’s order
denying his motion to modify his sentence pursuant to 18 U.S.C.
§ 3582 (2000). In 1991, a jury convicted Smith of five counts for
his participation in a drug trafficking scheme. Smith’s conviction
was affirmed on direct appeal. In 1994, Smith’s first 28 U.S.C.
§ 2255 (2000) motion was denied. In 2001, this court dismissed
Smith’s second 2255 motion as successive.
On May 23, 2003, Smith filed the instant action, requesting
that his sentence be modified based upon Amendment 645 to the
United States Sentencing Guidelines. However, Amendment 645 is not
listed in U.S. Sentencing Guidelines Manual § 1B1.10 (2002), which
allows for retroactive reductions of a sentence based upon
amendments to the Guidelines. Accordingly, under the plain
language of the guideline, the district court properly determined
that a sentence reduction was not authorized. See USSG § 1B1.10,
p.s.
Additionally, Smith’s claim that the district court had
the discretion to give retroactive effect to Amendment 645 as a
clarifying amendment is also without merit. In this Circuit,
clarifying amendments apply retroactively when the amendment takes
place before sentencing, or while direct appeal is pending. See
United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995); United
States v. Drath, 89 F.3d 216, 217 (5th Cir. 1996). Because neither
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of these conditions exist in this case, the district court
correctly determined that it lacked the authority to grant Smith a
sentence reduction. Capers, 61 F.3d at 1109.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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