                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6055


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHN RICHARD PROCTOR,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:04-
cr-00160-RWT-1)


Submitted:   September 30, 2010           Decided:   October 19, 2010


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


John Richard Proctor, Appellant Pro Se. Steven M. Dunne, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John Richard Proctor appeals from the district court’s

order   denying       his    18     U.S.C.       § 3582(c)       (2006)         motion      for   a

reduction       in    sentence          pursuant       to     Amendment          706     of     the

Sentencing      Guidelines.              The    district       court    determined            that,

because   Proctor       qualified         as    a     career     offender,        he     was    not

eligible for a reduction in sentence based on Amendment 706.

            Proctor         pled     guilty      to     possession         with    intent         to

distribute       50   grams        or    more    of     cocaine      base       and     unlawful

possession of firearms and ammunition by a convicted felon.                                       At

sentencing,      Proctor       was       held    accountable         for    more       than     1.5

kilograms of crack cocaine, resulting in a base offense level of

38.     Although       Proctor          qualified      as    a   career         offender,       the

offense level determined under U.S. Sentencing Guidelines Manual

§   2D1.1(c)(1)       (2008)       resulted      in    a    higher     offense         level,     so

Proctor’s       offense      level       was     not       changed     under      the       career

offender guideline.            After a two-level reduction for acceptance

of responsibility, Proctor’s adjusted offense level was 36, his

criminal history category VI, and his guideline range 324 to 405

months.         The   district          court    sentenced        him      to    324     months’

imprisonment.

            In November 2009, Proctor filed a motion for reduction

of sentence pursuant to 18 U.S.C. § 3582(c), based on Amendment

706,    which     reduced      the       offense       levels     applicable           to     crack

                                                2
cocaine     offenses.         The     district          court          denied    the       motion,

concluding that, because Proctor was sentenced under the career

offender guideline, he cannot benefit from the amendment to the

drug    quantity     table.          On    appeal       from        that      order,       Proctor

contends that he was not sentenced as a career offender and

therefore is eligible for a reduction under the amendment.                                       We

agree.

             Under § 3582(c)(2), the district court may modify the

term   of   imprisonment       “of    a     defendant         who       has    been    sentenced

. . . based on a sentencing range that has subsequently been

lowered,”     if    the    amendment        is       listed       in    the     Guidelines       as

retroactively       applicable.            18       U.S.C.    §     3582(c)(2).             In   the

context     of     Amendment      706,          a    defendant          whose        offense     of

conviction       involved    crack        cocaine      is     eligible         for     a    reduced

sentence only if the amendment 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).

             Although       Proctor        was       determined          to     be     a    career

offender, his guideline range was determined with reference to

the    quantity     of    drugs   attributed           to     him      under     USSG      § 2D1.1

because     the    guideline      range     produced          by       the    career       offender

designation was lower.            See USSG § 4B1.1(b) (“[I]f the offense

level for a career offender . . . is greater than the offense

level otherwise applicable, the offense level [generated by the

                                                3
career offender designation] shall apply.”).                           Proctor’s offense

level determined by reference to the drug quantity was 38; the

career offender guideline was 37.                           Because the offense level

determined under the drug tables was higher, that level was used

to determine Proctor’s sentence.                      Thus, Proctor’s sentence was,

in    fact,    based     on      a   guideline        range     that    was    subsequently

lowered by Amendment 706.                      Accordingly, the district court’s

finding       that   Amendment           706    did     not     authorize        a    sentence

reduction for Proctor because of his career offender designation

was erroneous.          See United States v. McGee, 553 F.3d 225, 230

(2d Cir. 2009) (concluding that a defendant who was designated

as a career offender but ultimately explicitly sentenced based

on a guideline range calculated by USSG § 2D1.1 was eligible for

a sentence reduction).

              Applying the amended drug quantity table in § 2D1.1

results in an offense level of 36, based on 1.5 kilograms of

crack cocaine.          The career offender guideline requires offense

level   37,     unless       a   higher    level       is    determined       based    on     the

offense   of     conviction.             Because      the    offense     level       under    the

career offender guideline is higher than the level determined by

reference to the drug quantity, Proctor’s offense level would be

37.       After        the       two-level          reduction     for     acceptance          of

responsibility,        his       total    offense      level     would    be    35     and,   at

criminal history category VI, his guideline range would be 292

                                                4
to     365    months.     Because       application       of    Amendment   706    to

Proctor’s sentencing results in a sentencing range that is lower

than the 324 to 405 month range applicable before Amendment 706,

a reduction in Proctor’s sentence is authorized under § 3582(c).

Because the district court mistakenly concluded that it was not

so authorized, we vacate the district court’s order and remand

to   the      district   court    for    a       determination     of   whether   the

reduction should be applied in Proctor’s case. *                   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.



                                                               VACATED AND REMANDED




       *
        We determine in this opinion that a reduction is
authorized; we express no opinion as to whether a reduction in
Proctor’s sentence is warranted. See United States v. Stewart,
595 F.3d 197, 200 (4th Cir. 2010) (providing that determination
of whether to grant reduction of sentence authorized under
Amendment 706 is within discretion of the district court judge).



                                             5
