                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12284                ELEVENTH CIRCUIT
                                                             MAY 28, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 00-06013-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

PATRICK ROBERTS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (May 28, 2009)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Patrick Roberts, through counsel, appeals the district court’s order denying

his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. Roberts’ § 3582(c)(2)

motion was based on Amendment 706 to the Sentencing Guidelines, which

reduced the base offense levels applicable to crack cocaine offenses.

      On appeal, Roberts concedes that he is not eligible for a sentence reduction

under Amendment 706 because he was sentenced as a career offender under U.S.

Sentencing Guidelines § 4B1.1. Nevertheless, he seeks to preserve for further

review his claim that the district court erred. Roberts also argues that he was

denied the assistance of counsel in violation of Arizona v. Fulminante, 499 U.S.

279, 309, 111 S. Ct. 1246, 1265 (1991). Roberts asserts that the district court’s

failure to notify the Federal Public Defender of its appointment left Roberts in a

worse position than someone who had not had counsel appointed to him at all.

While the district court had issued an order that appointed the Office of the Federal

Public Defender to represent Roberts, that order was never served. The district

court’s orders denying Roberts’ subsequent pro se motions likewise were not

served on the Office of the Federal Public Defender.

      “We review de novo a district court’s conclusions about the scope of its legal

authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983,

984 (11th Cir. 2008) (per curiam) (citations omitted). A district court may reduce



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the sentence “of a defendant who has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Any sentence reduction, however, must be

“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. The applicable policy statements prohibit a reduction if a

retroactive amendment applies to the defendant but “does not have the effect of

lowering the defendant’s applicable guideline range because of the operation of

another guideline or statutory provision.” U.S. S ENTENCING G UIDELINES M ANUAL

§ 1B1.10 cmt. n.1(A).

      Harmless error is applied to sentencing cases and remand is unnecessary if

the party defending the sentence persuades the court of appeals that the district

court would have imposed the same sentence absent the error. Williams v. United

States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1121 (1992). There is no constitutional

or statutory right to counsel for § 3582(c)(2) proceedings. United States v. Webb,

No. 08-13405, slip op. at 1977 (11th Cir. April 13, 2009) (per curiam).

      Here, as Roberts concedes, the district court did not err in denying his

motion for sentence reduction because he was sentenced as a career offender, and

the crack cocaine offense level played no ultimate role in his sentence. See

United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008), cert. denied, 129 S.



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Ct. 1601 (2009), and McFadden v. United States, 129 S. Ct. 965 (2009) (“Where a

retroactively applicable guideline amendment reduces a defendant’s base offense

level, but does not alter the sentencing range upon which his or her sentence was

based, § 3582(c)(2) does not authorize a reduction in sentence.”).

        Because Roberts had no constitutional right to an attorney during a

§ 3582(c)(2) proceeding, and the district court would have imposed the same

sentence even if he had been represented by counsel, Roberts’ rights were not

violated by the failure of the court to notify his counsel of its appointment. See

Williams, 503 U.S. at 203, 112 S. Ct. at 1121; Webb, No. 08-13405, slip op. at

1977.

        Upon review of the record and the parties’ briefs, we discern no error.

Accordingly, we affirm.

        AFFIRMED.




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