UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6541
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHAN L. SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:01-cr-00004-4-4)
Submitted: April 1, 2010 Decided: May 20, 2010
Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Charles T. Miller, United States
Attorney, Monica K. Schwartz, L. Anna Forbes, Assistant United
States Attorneys, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan L. Smith appeals the district court’s order
denying a reduction of sentence under 18 U.S.C. § 3582(c)(2)
(2006) based on the amendments to the sentencing guidelines for
crack cocaine offenses. The district court concluded that,
because Smith was sentenced as a career offender, his sentencing
range was unchanged as a result of the amendments. On appeal,
Smith argues the district court erred in denying a sentence
reduction based on his designation as a career offender and that
his due process rights were violated because his appointed
counsel filed a memorandum taking a “no-error position,”
contrary to Smith’s best interests, and Smith did not have an
opportunity to brief the district court directly. Specifically,
Smith maintains that he had a reasonable belief that his
appointed attorney would (1) inform him what she would file; and
(2) take a position that might represent Smith’s efforts to
obtain a shorter sentence. Smith contends that he was only
notified of his attorney’s representation and position when he
received a copy of her response and, by that time, the court had
already made a ruling. He complains that he had no opportunity
to notify the district court that he disagreed with his
attorney’s position. We affirm.
We review the district court’s denial of a reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of
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discretion. United States v. Stewart, 595 F.3d 197, 200 (4th
Cir. 2010). A defendant whose offense of conviction involved
crack cocaine is eligible for a reduced sentence only if
Amendment 706 lowers the defendant’s applicable guideline range.
See United States v. Lindsey, 556 F.3d 238, 244 (4th Cir.),
cert. denied, 130 S. Ct. 182 (2009). Smith does not contest the
fact that he was designated a career offender and that his
offense level was derived from application of the career
offender guideline. He argues, however, that his sentencing
range was “based on,” at least in part, the crack cocaine
guideline.
A district court, however, lacks the authority to
grant a motion for a reduced sentence under Amendment 706 if the
defendant seeking the reduction was sentenced pursuant to the
career offender provision. See United States v. Munn, 595 F.3d
183, 187, 192 (4th Cir. 2010) (describing circumstances, not
applicable here, where a defendant’s career offender designation
does not bar a § 3582(c)(2) sentence reduction based on
Amendment 706). We therefore find no abuse of discretion in the
district court’s denial of a reduction of sentence. To the
extent Smith argues the holding in United States v. Booker, 543
U.S. 220 (2005), applies to § 3582(c)(2) proceedings, this court
has expressly rejected this contention. United States v.
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Dunphy, 551 F.3d 247, 252-55 (4th Cir.), cert. denied, 129 S.
Ct. 2401 (2009).
We need not consider the merits of Smith’s due process
argument because any error in denying a reduction without first
giving Smith an opportunity to consult with counsel and be heard
directly was harmless. It is clear that the reduction would
have been correctly denied in any event because Smith’s
designation as a career offender precluded a sentence reduction
in his case. See generally United States v. Taylor, 414 F.3d
528, 537 (4th Cir. 2005) (rejecting defendant’s due process
right to be heard claim in a Fed. R. Crim. P. 35 proceeding
based on Taylor’s failure to show trial court abused its
discretion in refusing to conduct evidentiary hearing and ruling
on the motion in the absence of a written response from him).
Accordingly, we affirm the district court’s order
denying Smith a reduction of sentence under § 3582(c)(2). 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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