UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO R. REED,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:06-cr-00015-FPS-DJJ-1)
Submitted: May 17, 2012 Decided: May 29, 2012
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Antonio R. Reed, Appellant Pro Se. John Castle Parr, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio R. Reed appeals the district court’s order
denying his motion for a reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2) (2006). We review a district court’s ruling
on a 18 U.S.C. § 3582(c)(2) motion for an abuse of
discretion. United States v. Stewart, 595 F.3d 197, 200 (4th
Cir. 2010). We affirm.
In 2006, Reed pleaded guilty, pursuant to a plea
agreement, to one count of participating in a conspiracy to
distribute more than fifty grams of cocaine base in violation of
21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 2006 & Supp. 2011).
Reed’s advisory Guidelines range of imprisonment was calculated
using the career offender guideline, U.S. Sentencing Guidelines
Manual (“USSG”) § 4B1.1 (2005). The district court granted a
one offense level departure for substantial assistance to the
Government. Reed was sentenced to 235 months’ imprisonment, the
bottom of the post-departure Guidelines range.
Reed’s 18 U.S.C. § 3582(c)(2) motion sought a sentence
reduction based on Amendment 750 to the Guidelines. Amendment
750 revised the offense levels applicable to certain cocaine
base quantities under USSG § 2D1.1(c). The district court found
that Reed’s Guidelines range was calculated pursuant to the
career offender guideline, USSG § 4B1.1, and therefore Amendment
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750 had no effect on his Guidelines range. Thus, the district
court denied Reed’s § 3582(c)(2) motion.
On appeal, Reed contends that his substantial
assistance departure demonstrates that his Guidelines range was
based on USSG § 2D1.1(c) rather than the career offender
guideline. In support of his argument, Reed cites our decision
in United States v. Munn, 595 F.3d 183 (4th Cir. 2010).
In Munn, we found that the career offender designation did not
bar a § 3582(c)(2) sentence reduction based on Amendment 706 to
the Guidelines where (1) the sentencing court granted an
overrepresentation departure, and (2) the court relied upon the
cocaine base guidelines in calculating the extent of the
departure. Munn, 595 F.3d at 192. Reed requests that we extend
the holding of Munn to cover substantial assistance departures
in addition to overrepresentation departures.
We need not consider this issue because Reed has
failed to demonstrate that the district court relied upon the
cocaine base guidelines in calculating the extent of the
departure. Reed’s substantial assistance departure was a flat
reduction of one offense level. The district court did not
reduce Reed’s criminal history category and instead retained the
criminal history category that resulted from the application of
the career offender guideline. Because we do not find that
Reed’s Guidelines range was based on USSG § 2D1.1(c), we cannot
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agree with Reed’s contention that Amendment 750 altered his
Guidelines calculation.
Reed also argues that the district court abused its
discretion by declining to appoint counsel to assist him in
preparing his § 3582(c)(2) motion. The court had previously
denied Reed’s earlier § 3582(c)(2) motion based on Amendment 706
for substantially the same reason. Appointment of counsel would
not have remedied the flaw underlying Reed’s motion. We do not
find an abuse of discretion here.
Accordingly, we affirm the district court’s order. 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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