US v. Alfred Mack

Filing 920090514

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6773 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFRED EUGENE MACK, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (7:01-cr-00826-HMH-1) Submitted: April 27, 2009 Decided: May 14, 2009 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Alfred Eugene Mack, Appellant Pro Se. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alfred Eugene Mack appeals the district court=s order denying his motion for modification of sentence. Mack argues that the district court erred by failing to reduce his sentence based on Amendment 706 of the Guidelines, see U.S. Sentencing Guidelines Manual 2D1.1(c) (2007 & Supp. 2008); USSG App. C Amend. 706, and United States v. Booker, 543 U.S. 220 (2005). As we recently observed, "Amendment 706 . . . amended 2D1.1 of the Sentencing Guidelines by reducing the offense levels United Mack's associated with crack cocaine quantities by two levels." States v. Hood, 556 F.3d 226, 232 (4th Cir. 2009). sentence was determined by the career offender guideline, USSG 4B1.1, and was not based on a sentencing range lowered by the amendment. The fact that the district court reduced Mack's sentence under 18 U.S.C. 3553(e) (2006) and USSG 5K1.1 is irrelevant to the applicability of Amendment 706. F.3d at 234. Hood, 556 Moreover, Mack's contentions that the court could have considered a sentence below the amended guidelines range and that he is entitled to a full resentencing under Booker are foreclosed by our decision in United States v. Dunphy, 551 F.3d 247 (4th Cir. 2009), petition for cert. filed, 77 U.S.L.W. 3559 (U.S. Mar. 20, 2009) (No. 08-1185). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court. 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 3

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