                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4362


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MAURICE EDGAR MCKENZIE, a/k/a Cappo,           a/k/a   Cappa,   a/k/a
Richard Knight, a/k/a Emanuel Askew,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:97-cr-00032-SB-1)


Submitted:    November 6, 2009              Decided:   November 20, 2009


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Peter Thomas Phillips, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Maurice        Edgar    McKenzie            appeals       from    the     district

court’s grant in part of his motion for reduction of sentence

based    upon    the      crack    cocaine         amendments         to     the    Sentencing

Guidelines       pursuant     to     18     U.S.C.         § 3582(c)          (2006).          We

previously       remanded     the     case         to     the    district          court     with

directions for the court to provide adequate reasoning for its

decision.       See United States v. McKenzie, No. 08-7630 (4th Cir.

Mar. 18, 2009) (unpublished).                   The district court then entered

another     order,      reimposing        the      same     sentence         and     providing

expanded reasoning.           McKenzie again appealed.                       On appeal, he

asserts that the district court should have applied Apprendi v.

New Jersey, 530 U.S. 466 (2000), when imposing his new sentence.

He also claims that the district court’s reasoning was still

insufficient.      We affirm.

            As     to     McKenzie’s       first          claim,       Apprendi       is     not

retroactively        applicable      in      a      § 3582       proceeding.               United

States v. McBride, 283 F.3d 612, 615-16 (3d Cir. 2002); see also

United    States     v.    Dunphy,       551       F.3d    247,       251-53       (4th     Cir.)

(holding that “proceedings under § 3582(c)(2) do not constitute

a full resentencing of the defendant” and stating that rule in

Booker    regarding       proof     requirements           for    facts       that    increase

criminal    penalties       “has    no    application            to    proceedings          under



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§ 3582(c)(2)”),          cert.      denied,     129        S.   Ct.       2401     (2009).

Accordingly, this claim is without merit.

            Turning       to   McKenzie’s       assertions       that      the    district

court    again     failed      to   provide     reasoning       for       its    decision,

McKenzie specifically argues that the district court failed to

consider the fact that he was sentenced pre-Apprendi under a

sentencing scheme that was later found to be unconstitutional.

Further, McKenzie claims that the court’s consideration of his

post-conviction      behavior        was    conclusory.          Instead,         McKenzie

asserts that the court relied solely on the factors supporting

his     original    sentence        and    failed     to     consider      the     present

factors.

            In United States v. Legree, 205 F.3d 724, 728-29 (4th

Cir. 2000), we held that there exists a presumption, absent a

contrary    indication         in   the    record,       that   the   district       court

considered    the    §    3553(a)     factors       in     denying    a    §    3582(c)(2)

motion.     However, in United States v. Gall, 552 U.S. 38, 128 S.

Ct. 586, 597 (2007), which was decided after Legree, the Supreme

Court held that a sentencing judge must make an “individualized”

sentence assessment based on the facts presented and explain

adequately the chosen sentence.                 While we have not yet applied

Gall to § 3582 motions, we find that, even under this heightened

standard, the district court’s reasoning was adequate.



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          The court stated that McKenzie’s underlying crime and

conduct was reprehensible, that a longer sentence would promote

respect for the law, * and that neither the Supreme Court’s new

decisions nor McKenzie’s post-conviction conduct entitled him to

a lower sentence.     Our review of the record makes it clear that

the court considered McKenzie’s arguments for a lower sentence

and rejected them.    It is also apparent from the record that the

district court explicitly considered the § 3553 factors prior to

imposing sentence.    Thus, we find no abuse of discretion in the

district court’s recitation of its reasoning.

          Accordingly, we affirm.      We deny McKenzie’s motion to

substitute and appoint counsel.       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




     *
       Both the Government and McKenzie agreed that a sentence at
the low end of the amended Guidelines range was appropriate.
Instead, the district court imposed a sentence at the high end
of the amended Guidelines range.



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