UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8157
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH L. HOPKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:95-cr-00073-JRS-3)
Submitted: March 23, 2009 Decided: April 23, 2009
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Keith L. Hopkins, Appellant Pro Se. Gurney Wingate Grant, II,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith L. Hopkins appeals the district court’s order
denying his motion for reduction of sentence, 18 U.S.C.
§ 3582(c)(2) (2006). The district court concluded that Hopkins
was not entitled to the benefit of Amendment 706 of the
sentencing guidelines because he was sentenced as a career
offender. Our review of the record reveals that, although
Hopkins qualified as a career offender, U.S. Sentencing
Guidelines Manual § 4B1.1 (1995), he was not sentenced based on
this status. Nonetheless, application of Amendment 706 would
not have the effect of lowering Hopkins’ guideline range. We
accordingly affirm. See United States v. Smith, 395 F.3d 516,
519 (4th Cir. 2005) (holding we “may affirm on any grounds
apparent from the record”).
I
A district court may modify the term of imprisonment
“of a defendant who has been sentenced . . . based on a
sentencing range that has subsequently been lowered,” if the
amendment is listed in the guidelines as retroactively
applicable. 18 U.S.C. § 3582(c)(2); see also U.S. Sentencing
Guidelines Manual § 1B1.10, p.s. (2008). However, “[a]
reduction in the defendant’s term of imprisonment is not . . .
authorized under . . . § 3582(c)(2) if . . . [the amendment]
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does not have the effect of lowering the defendant’s applicable
guideline range.” USSG § 1B1.10(a)(2)(B), p.s. Amendment 706,
the 2007 amendment to USSG § 2D1.1 that lowered the base offense
levels for most offenses involving crack cocaine, applies
retroactively. USSG § 1B1.10(c), p.s.
II
Hopkins was held responsible for ninety-eight grams of
cocaine base and 447 grams of heroin, for a marijuana
equivalency of 2407 kilograms. This resulted in a base offense
level of 32 (at least 1000 kg but less than 3000 kg marijuana).
See USSG § 2D1.1(c)(4). Two levels were added for each of the
following: Hopkins’ role in the offense; his possession of a
firearm; and his obstruction of justice. His total offense
level was 38. As a career offender, Hopkins was in criminal
history category VI, see USSG § 4B1.1; however, with seventeen
criminal history points, Hopkins qualified for category VI
independently of his career offender status. His advisory
guideline range was 360 months-life in prison.
Although Hopkins qualified as a career offender, the
above calculations, rather than the table at USSG § 4B1.1, were
used to determine his guideline range because his total offense
level from the table would have been 37 — less than the offense
level above. See USSG § 4B1.1 (“If the offense level for a
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career criminal from the table * below is greater than the offense
level otherwise applicable, the offense level from the table
below shall apply.”).
Application of Amendment 706 would not change Hopkins’
advisory guideline range of 360 months-life. Hopkins was
responsible for a marijuana equivalency of 2407 kilograms, which
continues to correspond to base offense level 32. See USSG
§ 2D1.1(c)(4) (2008). Under Amendment 706, this is reduced to
base offense level 30. See USSG § 2D1.1, comment.
(n.10(D) (i-ii)) (reduce base offense level by two levels if
offense involves cocaine base and another controlled substance).
With the three two-level adjustments described above, Hopkins’
total offense level is 36. Under USSG § 4B1.1(b), the offense
level set forth in that guideline’s table must be used.
Therefore, under Amendment 706, Hopkins’ total offense level is
37, his criminal history category is VI, and his advisory
guideline range remains 360 months-life in prison.
Because Amendment 706 “does not have the effect of
lowering the defendant’s applicable guideline range”, USSG
§ 1B1.10(a)(2)(B), p.s., Hopkins is ineligible for a sentence
reduction under § 3582(c)(2). We accordingly affirm. We
*
According to the table, because Hopkins’ offense statutory
maximum was life in prison, see 21 U.S.C. § 841(b)(1)(A), his
offense level as a career offender was 37. See USSG § 4B1.1.
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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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