                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-7726


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHELLE DWAYNE BYERS, a/k/a Sld Dft              3:97-184-5,   a/k/a
Michael Dwayne Byers, a/k/a Duke Byers,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:97-cr-00184-FDW-5)


Submitted:    August 18, 2009                 Decided:   September 8, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Steven George Slawinski, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Michelle         Dwayne    Byers       appeals    the   district        court’s

denial   of   his      18    U.S.C.    § 3582(c)(2)          (2006)     motion      for   a

reduction in sentence.           In his motion, Byers sought to receive

the benefit of Amendment 706 to the U.S. Sentencing Guidelines

Manual (“USSG”).        The Government has filed a motion to dismiss,

contending    that      Byers’s       May     13,     2009   release        from    prison

effectively mooted this appeal.                   Because Byers is ineligible for

relief   under    Amendment       706,       we    affirm    the   judgment        of   the

district court without reaching the mootness issue.

           Byers pled guilty, pursuant to a plea agreement, to

conspiracy to possess with intent to distribute and distribute

cocaine and cocaine base within 1,000 feet of a playground, in

violation of 21 U.S.C. §§ 841(a)(1), 846, 860 (2006).                          Prior to

sentencing,      the     probation          officer     prepared        a    presentence

investigation report (“PSR”), calculating Byers’s base offense

level at thirty-seven, which became a total offense level of

thirty-four   after         adjustment      for     acceptance     of   responsibility

under USSG § 3E1.1 (1997).             When combined with Byers’s criminal

history category of VI, this yielded a guideline range of 262 to

327 months’ imprisonment.              Additionally, the probation officer

determined    that      Byers        was     a     career    offender       under       USSG

§ 4B1.1(a).      The base offense level under § 4B1.1(A) was also

thirty-seven, for a total offense level of thirty-four after

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adjustment      for   acceptance        of   responsibility.            Thus,     because

Byers’s offense level under USSG § 4B1.1 was not greater than

the offense level otherwise applicable, Byers’s career offender

designation     had   no     immediate       effect     on    his     sentence.     USSG

§ 4B1.1.      At sentencing, the district judge departed downward

upon the Government’s USSG § 5K1.1 motion, and sentenced Byers

to 144 months’ imprisonment on September 21, 1998.

             Almost    ten    years     later,    Byers       filed     a   § 3582(c)(2)

motion for reduction of sentence, seeking to receive the benefit

of Amendment 706 to the guidelines.                     Determining that Byers’s

career offender status rendered Byers ineligible for application

of   Amendment    706,      the    district      court       denied    Byers’s     § 3582

motion.    Byers filed a timely appeal.

             We review for abuse of discretion a district court’s

decision denying a sentence reduction under § 3582(c)(2).                               See

United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004).                             The

district     court    may    reduce      the     term    of     imprisonment       of    a

defendant who has been sentenced based on a guideline range that

has subsequently been lowered by an amendment to the guidelines,

so long as the amendment has been made retroactively applicable.

See USSG § 1B1.10(a)(1), p.s. (2008).                    However, “[a] reduction

in the defendant’s term of imprisonment is not consistent with

this   policy    statement        and   therefore       is    not     authorized    under

. . . § 3582(c)(2) if . . . an amendment . . . does not have the

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effect of lowering the defendant’s applicable guideline range.”

USSG § 1B1.10(a)(2)(B).

               In     denying        Byers’s         motion,        the    district        court

concluded that Byers’s designation as a career offender rendered

him ineligible for relief under Amendment 706.                             On appeal, Byers

contends that because his offense levels and criminal history

categories were the same under USSG §§ 2D1.1(c) and 4A1.1, as

they     were       pursuant         to      USSG       § 4B1.1’s         career      offender

designation,        Byers’s      sentencing            range,       before    the     downward

departure      under     USSG    § 5K1.1,            p.s.,    was   based     on    his    crack

cocaine offense level, not his career offender offense level.

Therefore, Byers asserts, substituting the amended version of

USSG § 2D1.1 for the version applied during Byers’s sentencing

while    leaving       all    other       guideline      decisions        unaffected       would

reduce Byers’s total offense level from thirty-four to thirty-

two.

               Byers     is    correct       that,      had    Amendment      706     been    in

effect    at    the    time     of    his    sentencing,        the       probation    officer

would have calculated his base offense level at thirty-five, see

USSG     §§ 2D1.1(c)(3),          2D1.2(a)(2)           (2008),       which        would    have

resulted in a total offense level of thirty-two after adjustment

for acceptance of responsibility.                        When combined with Byers’s

criminal       history       category       of   VI,    this    would       have    yielded    a

guidelines range of 210 to 262 months’ imprisonment.                                  USSG ch.

                                                 4
5,    pt.   A    (sentencing      table).            This,    however,         does    not     make

Byers’s case.

                Byers overlooks the fact that, as a result of this

lessened        crack   cocaine     offense         level     had    Amendment         706     been

applicable at his sentencing, he would have been sentenced under

the career offender base offense level dictated by USSG § 4B1.1,

as his career offender offense level of thirty-seven would have

been more than his otherwise applicable offense level of thirty-

five. USSG § 4B1.1(b).              Accordingly, even with the application

of Amendment 706, Byers’s base offense level would have remained

thirty-seven,           which,     after        a     three-level          adjustment          for

acceptance of responsibility, would have resulted in a total

offense level of thirty-four, and a guideline range of 262 to

327    months’      imprisonment,         the       same     as    the    range       originally

calculated        by    the      probation          officer.         Therefore,          because

Amendment        706    “d[id]     not    have       the     effect       of    lowering       the

defendant’s applicable guideline range,” the district court did

not err in determining that Byers was ineligible to receive the

benefit of Amendment 706.               USSG § 1B1.10(a)(2), p.s.

                Accordingly,       we     deny       the     Government’s             motion    to

dismiss, deny Byers’s motion for appointment of counsel, and

affirm the judgment of the district court.                                We dispense with

oral    argument        because     the    facts       and        legal   contentions          are



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adequately   expressed   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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