UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8471
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THOMAS RUTHERFORD CARSON, a/k/a Tom, a/k/a Sld Dft 1:00-9-4,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:00-cr-00009-LHT-4)
Submitted: April 30, 2009 Decided: June 17, 2009
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Elizabeth Blackwood, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Rutherford Carson appeals the district court’s order
denying his motion for modification of sentence pursuant to 18
U.S.C. § 3582(c)(2). Carson argues that the district court
erred by failing to reduce his sentence based upon Amendment 706
of the Guidelines. See U.S. Sentencing Guidelines Manual,
§ 2D1.1(c). He contends that he is entitled to an adjustment in
his sentence under Amendment 706. *
At sentencing, Carson’s Guideline range based on drug
involvement would have been 235 to 293 months. However, he was
found to be a career offender, resulting in a Guideline range of
262 to 327 months. On the government’s motion, the district
court agreed to reduce Carson’s sentencing range to 140 to 175
months to account for his substantial assistance, pursuant to
Section 5K1.1 of the Sentencing Guidelines and Title 18, United
States Code, Section 3553(e). Thereafter, Carson argued for a
*
Amendment 706 “amended § 2D1.1 of the Sentencing
Guidelines by reducing the offense levels associated with crack
cocaine quantities by two levels.” United States v. Hood, 556
F.3d 226, 232 (4th Cir. 2009). This amendment lowers a
sentencing range with retroactive application and enables a
defendant to seek a reduced sentence through a motion filed
under 18 U.S.C. § 3582(c)(2). Id. In order for a defendant to
receive a reduced sentence under § 3582(c)(2), “Amendment 706
must have ‘the effect of lowering the defendant’s applicable
guideline range.’” Id. (emphasis in original).
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further departure based on various circumstances concerning his
health and past criminal history. In response to these
arguments, the government agreed that a one-level reduction was
appropriate; and the court lowered Carson’s sentencing range to
between 130 and 162 months. Carson was then sentenced to 132
months.
In denying Carson’s 3582(c)(2) motion, the district court
noted that Carson was originally sentenced as a career offender
based on his criminal history and was not sentenced based on an
offense level associated with a drug quantity. Therefore, the
district court properly determined that Carson was not entitled
to a reduction in his sentence based on Amendment 706, which
only applies to reduce offense levels associated with a drug
quantity. See U.S. Sentencing Guidelines Manual, § 1B1.10,
p.s., cmt. n. 1(A). Accordingly, a reduction in Carson’s
sentence is not authorized under § 3582(c)(2). The fact that
the district court originally reduced Carson’s sentence for
substantial assistance and other considerations is irrelevant to
the applicability of Amendment 706. See Hood, 556 F.3d at 234.
Accordingly, we affirm the decision of the district court. 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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