UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7079
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RUSSELL GARNET TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:99-cr-00071-RLV-5)
Submitted: February 27, 2012 Decided: March 29, 2012
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Garnet Turner, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Russell Turner appeals the district court’s denial of
his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of
sentence. We affirm.
I
Turner pled guilty to conspiracy to possess with
intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 846 (2000). The indictment did not
allege a specific drug amount. The Government filed an 18
U.S.C. § 851 information, thereby subjecting Turner to a penalty
of “not more than 30 years” for his offense. See 21 U.S.C.
§ 841(b)(1)(C) (2000).
Turner stipulated in his plea agreement that he was
responsible for at least fifty grams, but not more than 150
grams, of cocaine base. His base offense level was 32. See
U.S. Sentencing Guidelines Manual § 2D1.1(c)(4) (1998). Two
levels were added for obstruction of justice. See USSG § 3C1.1.
His total offense level was 34, his criminal history category
was VI, and his advisory Guidelines range was 262-327 months.
Turner qualified as a career offender. Because, under
§ 841(b)(1)(C), the maximum term of imprisonment to which he was
subject was thirty years, his offense level as a career offender
was 34. His criminal history category as a career offender was
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VI. See USSG § 4B1.1. Turner’s advisory Guidelines range as a
career offender was 262-327 months — the same range as that
calculated under the Drug Quantity Table.
The district court sentenced Turner in 2001 to 360
months in prison — above the advisory Guidelines range. The
court did not explain its reason for this departure.
Turner appealed. We dismissed the appeal in part and
affirmed in part. We concluded that Turner had knowingly and
intelligently waived his right to appeal all claims except
claims of ineffective assistance of counsel and that his claim
of ineffective assistance lacked merit. United States v.
Turner, 43 F. App’x 704 (4th Cir. 2002).
II
In his § 3582(c)(2) motion, Turner sought the benefit
of Amendment 706 of the Guidelines, which reduced the base
offense levels applicable to most offenses involving cocaine
base. We review the denial of a § 3582(c)(2) motion for abuse
of discretion. United States v. Goines, 357 F.3d 469, 476 (4th
Cir. 2004).
Under § 3582(c)(2), the 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
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retroactively applicable. 18 U.S.C. § 3582(c)(2); see also USSG
§ 1B1.10, p.s. Further, “[a] reduction in the defendant’s term
of imprisonment is not consistent with this policy statement and
therefore is not authorized under . . . § 3582(c)(2) if . . . an
amendment listed in subsection (c) does not have the effect of
lowering the defendant’s applicable guideline range.” USSG
§ 1B1.10(a)(2)(B), p.s. The commentary to the guideline
reiterates that:
[e]ligibility for consideration under § 3582(c)(2) is
triggered by an amendment listed in subsection (c)
that lowers the applicable guideline range.
Accordingly, a reduction in the defendant’s term of
imprisonment is not authorized under 18 U.S.C.
§ 3582(c)(2) and is not consistent with this policy
statement if: . . . (ii) an amendment listed in
subsection (c) is applicable to the defendant but the
amendment does not have the effect of lowering the
defendant’s applicable guideline range.
USSG § 1B1.10, comment. (n.1(A)). Amendment 706 applies
retroactively.
III
Application of Amendment 706 does not have the impact
of lowering Turner’s Guidelines range. Under USSG § 2D1.1,
Turner’s base offense level is reduced from 32 to 30, see USSG
§ 2D1.1(c)(5) (2008), and his advisory Guidelines range is 210-
262 months. However, Turner is a career offender. His
Guidelines range under USSG § 4B1.1 is unaffected by Amendment
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706, and it remains 262-327 months. Because this is higher than
the range calculated under the Drug Quantity Table, it is the
determinative Guidelines range. Amendment 706 thus did not
“have the effect of lowering [Turner’s] applicable Guidelines
range.” See USSG § 1B1.10, comment. (n.1(A)). Accordingly, the
district court correctly denied the motion for reduction of
sentence.
IV
We therefore affirm. We deny the motion for
appointment of counsel and 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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