                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.                                     On appeal,

Smith    argues       the      district          court   erred       in   denying     a    sentence

reduction based on his designation as a career offender and that

his    due    process         rights        were    violated         because    his       appointed

counsel       filed       a        memorandum       taking       a     “no-error       position,”

contrary to Smith’s best interests, and Smith did not have an

opportunity to brief the district court directly.                                Specifically,

Smith    maintains            that     he    had     a    reasonable         belief       that    his

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.                  He complains that he had no opportunity

to    notify       the      district        court        that    he       disagreed       with    his

attorney’s position.                 We affirm.

              We review the district court’s denial of a reduction

of    sentence      pursuant          to    18    U.S.C.    § 3582(c)(2)         for      abuse    of

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discretion.             United States v. Stewart, 595 F.3d 197, 200 (4th

Cir. 2010).              A defendant whose offense of conviction involved

crack     cocaine         is    eligible     for     a     reduced   sentence          only   if

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).                       Smith does not contest the

fact    that       he    was    designated     a    career    offender      and     that      his

offense     level         was    derived      from       application       of    the    career

offender guideline.                He argues, however, that his sentencing

range    was       “based       on,”   at   least     in    part,    the    crack      cocaine

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.                  See United States v. Munn, 595 F.3d

183,    187,       192    (4th Cir.     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

district court’s denial of a reduction of sentence.                                     To the

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.               It is clear that the reduction would

have    been     correctly     denied        in    any    event    because       Smith’s

designation as a career offender precluded a sentence reduction

in his case.          See generally United States v. Taylor, 414 F.3d

528,    537    (4th   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

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




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