UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6144
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCUS FRANKLIN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:05-cr-00192-REP-1)
Submitted: November 8, 2010 Decided: November 30, 2010
Before MOTZ, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Sara Elizabeth Chase,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Franklin appeals the district court’s order
denying his motion for reduction of sentence, 18 U.S.C.
§ 3582(c) (2006). Our review of the record discloses that the
gun and drug counts were grouped for purposes of determining
Franklin’s advisory Guidelines range. Although application of
Amendment 706 of the sentencing guidelines would reduce the
offense level for the drug count, the Amendment does not apply
to the gun count. “[T]he offense level applicable to a Group is
the offense level . . . for the [more] serious of the counts
comprising the Group, i.e., the [higher] offense level of the
counts in the Group.” U.S. Sentencing Guidelines Manual
§ 3D1.3(a) (2008). Because the offense level for the firearm
count is greater than the offense level (as reduced by Amendment
706) for the drug count, the offense level for the group is that
of the gun count. Accordingly, application of Amendment 706
would not have the effect of lowering Franklin’s advisory
Guidelines range. See USSG § 1B1.10, comment. (n.1(A)). We
therefore hold that the district court did not abuse its
discretion in denying Franklin’s motion, and we affirm. 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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