United States v. Eric Smith

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-8062


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC BERNARD SMITH, a/k/a Pac-Man, a/k/a E,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:03-cr-00012-RLV-CH-2)


Submitted:   March 28, 2013                 Decided:   April 2, 2013


Before NIEMEYER, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric Bernard Smith, Appellant Pro Se.       Thomas A. O’Malley,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Eric Bernard Smith appeals the district court’s order

denying his 18 U.S.C. § 3582(c)(2) (2006) motion to reduce his

sentence    pursuant          to   Amendment   750   to    the   U.S.   Sentencing

Guidelines Manual (2011) and United States v. Simmons, 649 F.3d

237 (4th Cir. 2011).               We have reviewed the record and conclude

the district court properly found it lacked the authority to

reduce Smith’s life sentence, which was the statutory mandatory

minimum.    See United States v. Munn, 595 F.3d 183, 186 (4th Cir.

2010) (explaining that this court reviews de novo the district

court’s “conclusion on the scope of its legal authority under

§ 3582(c)(2)”); see also Dillon v. United States, __ U.S. __,

130 S. Ct. 2683, 2690–92 (2010) (clarifying that § 3582(c)(2)

does not authorize a resentencing, but rather permits a sentence

reduction within the narrow bounds established by the Sentencing

Commission).           Furthermore,     Smith’s    claim   pursuant     to    Simmons

simply     is     not     cognizable      in   a     § 3582(c)(2)       proceeding.

Accordingly, we affirm for the reasons stated by the district

court.     See United States v. Smith, No. 5:03–cr–00012–RLV–CH-2

(W.D.N.C.       Oct.    31,    2012).     We   dispense     with   oral      argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                             AFFIRMED

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