                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-7902


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNY MACK, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:04-cr-00226-RJC-CH-1)


Submitted:   January 20, 2011              Decided:   March 17, 2011


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Johnny Mack, Jr., 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Unpublished opinions are not binding precedent in this circuit.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:

             Johnny Mack, Jr., appeals the district court’s order

denying his motion for reduction of sentence under 18 U.S.C.

§ 3582(c)(2)         (2006)          and    Amendment         706   to    the    Sentencing

Guidelines.          The       district         court   is    generally    authorized     to

reduce the term of imprisonment of a defendant who has been

sentenced based on a sentencing range that has subsequently been

lowered   by    an        amendment        to    the    Sentencing       Guidelines     under

§ 3582(c)(2),            so     long       as    the     amendment       has    been    made

retroactively applicable.                  See U.S. Sentencing Guidelines Manual

(USSG) § 1B1.10, p.s. (2010); see also USSG § 1B1.10(c) (stating

Amendment 706 applies retroactively).                         A defendant, however, is

ineligible for a sentence reduction “if . . . the amendment does

not   have     the       effect       of    lowering      the defendant’s        applicable

guideline range because of the operation of another guideline or

statutory provision.”                USSG § 1B1.10 cmt. n.1(A).

             The district court began Mack’s sentencing hearing by

establishing         a        base    offense         level    of   thirty      under   USSG

§ 2D1.1(c)(5). 1          After application of a two-level reduction under



      1
       Mack pled guilty to possession with intent to distribute
five grams or more of cocaine base (Count 1), possession of a
firearm during and in relation to a drug trafficking crime
(Count 2), and possession of a firearm by a felon (Count 3).
Counts 1 and 3 were closely related and therefore grouped under
the Sentencing Guidelines. See USSG § 3D1.2(c) (explaining when
(Continued)
                                                  2
Amendment 706, the relevant offense level for Count 1 becomes

twenty-eight.          See generally United States v. Lindsey, 556 F.3d

238,       244-46    (4th     Cir.)      (explaining      methodology      for     applying

Amendment 706), cert. denied, 130 S. Ct. 182 (2009).                                  Because

this       offense    level      still    is   greater     than      the   offense      level

determined under Count 3 (the firearm count), Count 1 controls.

With a three-level reduction for acceptance of responsibility,

the    revised        grouped     offense      level      is    twenty-five,      and    the

amended       Guidelines       range     is    100   to   125    months,       making    Mack

eligible for a sentence reduction.

               Because      we    conclude         that   Mack    is    eligible       for    a

sentence reduction, we vacate the district court’s order and

remand       for     further     consideration        under      USSG   § 1B1.10. 2          We

dispense       with     oral      argument      because        the     facts    and     legal




counts should be grouped for “involv[ing] substantially the same
harm”).
       2
       By this disposition, we indicate no view as to whether the
district court should exercise its discretion to reduce Mack’s
sentence; we simply conclude that the court erred by finding
that Mack was not eligible for a sentencing reduction. Indeed,
in exercising its discretion, the district court must be mindful
that the Guidelines direct that “if the original term of
imprisonment constituted a non-guideline sentence determined
pursuant to 18 U.S.C. § 3553(a) [(2006)] and United States v.
Booker, 543 U.S. 220 (2005), a further reduction generally would
not be appropriate.” USSG § 1B1.10(b)(2)(B).



                                               3
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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