US v. Nathan Smith

Filing 920100520

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6541

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NATHAN L. SMITH, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:01-cr-00004-4-4)

Submitted:

April 1, 2010

Decided:

May 20, 2010

Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Charles T. Miller, United States Attorney, Monica K. Schwartz, L. Anna Forbes, Assistant United States Attorneys, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Nathan L. Smith appeals the district court's order

denying a reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006) based on the amendments to the sentencing guidelines for crack cocaine offenses. The district court concluded that,

because Smith was sentenced as a career offender, his sentencing range was unchanged as a result of the amendments. Smith argues the district court erred in denying On appeal, a sentence

reduction based on his designation as a career offender and that his due process filed a rights were violated taking a because his appointed position,"

counsel

memorandum

"no-error

contrary to Smith's best interests, and Smith did not have an opportunity to brief the district court directly. Smith maintains that he had a reasonable Specifically, that his

belief

appointed attorney would (1) inform him what she would file; and (2) take a position that might represent Smith's efforts to

obtain a shorter sentence.

Smith contends that he was only

notified of his attorney's representation and position when he received a copy of her response and, by that time, the court had already made a ruling. to notify the He complains that he had no opportunity court that he disagreed with his

district

attorney's position.

We affirm.

We review the district court's denial of a reduction of sentence pursuant to 18 U.S.C. 2 § 3582(c)(2) for abuse of

discretion. Cir. 2010). crack

United States v. Stewart, 595 F.3d 197, 200 (4th A defendant whose offense of conviction involved is eligible for a reduced sentence only if

cocaine

Amendment 706 lowers the defendant's applicable guideline range. See United States v. Lindsey, 556 F.3d 238, 244 (4th Cir.), cert. denied, 130 S. Ct. 182 (2009). fact that he was was designated derived a Smith does not contest the offender and that his

career

offense

level

from

application

of

the

career

offender guideline. range was "based

He argues, however, that his sentencing at least in part, the crack cocaine

on,"

guideline. A district court, however, lacks the authority to

grant a motion for a reduced sentence under Amendment 706 if the defendant seeking the reduction was sentenced pursuant to the career offender provision. 183, 187, 192 (4th Cir. See United States v. Munn, 595 F.3d 2010) (describing circumstances, not

applicable here, where a defendant's career offender designation does not bar a § 3582(c)(2) sentence reduction based on

Amendment 706).

We therefore find no abuse of discretion in the To the

district court's denial of a reduction of sentence.

extent Smith argues the holding in United States v. Booker, 543 U.S. 220 (2005), applies to § 3582(c)(2) proceedings, this court has expressly rejected this contention. United States v.

3

Dunphy, 551 F.3d 247, 252-55 (4th Cir.), cert. denied, 129 S. Ct. 2401 (2009). We need not consider the merits of Smith's due process argument because any error in denying a reduction without first giving Smith an opportunity to consult with counsel and be heard directly was harmless. have been correctly It is clear that the reduction would denied in any event because Smith's

designation as a career offender precluded a sentence reduction in his case. 528, 537 (4th See generally United States v. Taylor, 414 F.3d Cir. 2005) (rejecting defendant's due process

right to be heard claim in a Fed. R. Crim. P. 35 proceeding based on Taylor's failure to show trial court abused its

discretion in refusing to conduct evidentiary hearing and ruling on the motion in the absence of a written response from him). Accordingly, we affirm the district court's order We

denying Smith a reduction of sentence under § 3582(c)(2). 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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