                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-8157


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KEITH L. HOPKINS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:95-cr-00073-JRS-3)


Submitted:    March 23, 2009                  Decided:   April 23, 2009


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Keith L. Hopkins, Appellant Pro Se.          Gurney Wingate Grant, II,
Assistant United States Attorney,            Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Keith L. Hopkins appeals the district court’s order

denying      his     motion       for     reduction       of     sentence,           18     U.S.C.

§ 3582(c)(2) (2006).              The district court concluded that Hopkins

was   not    entitled        to    the     benefit       of    Amendment         706       of    the

sentencing     guidelines          because       he     was    sentenced        as     a    career

offender.          Our    review     of   the       record     reveals     that,          although

Hopkins      qualified        as     a    career        offender,        U.S.        Sentencing

Guidelines Manual § 4B1.1 (1995), he was not sentenced based on

this status.          Nonetheless, application of Amendment 706 would

not have the effect of lowering Hopkins’ guideline range.                                            We

accordingly affirm.               See United States v. Smith, 395 F.3d 516,

519   (4th    Cir.       2005)    (holding       we    “may    affirm      on    any       grounds

apparent from the record”).



                                                I

             A 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); see also U.S. Sentencing

Guidelines         Manual     § 1B1.10,          p.s.     (2008).          However,             “[a]

reduction in the defendant’s term of imprisonment is not . . .

authorized under . . . § 3582(c)(2) if . . . [the amendment]

                                                2
does not have the effect of lowering the defendant’s applicable

guideline range.”         USSG § 1B1.10(a)(2)(B), p.s.                  Amendment 706,

the 2007 amendment to USSG § 2D1.1 that lowered the base offense

levels     for    most    offenses     involving         crack     cocaine,       applies

retroactively.      USSG § 1B1.10(c), p.s.



                                            II

            Hopkins was held responsible for ninety-eight grams of

cocaine     base    and     447     grams        of    heroin,    for     a    marijuana

equivalency of 2407 kilograms.               This resulted in a base offense

level of 32 (at least 1000 kg but less than 3000 kg marijuana).

See USSG § 2D1.1(c)(4).             Two levels were added for each of the

following: Hopkins’ role in the offense; his possession of a

firearm;    and    his    obstruction       of    justice.        His    total    offense

level was 38.        As a career offender, Hopkins was in criminal

history category VI, see USSG § 4B1.1; however, with seventeen

criminal    history       points,    Hopkins          qualified    for    category     VI

independently      of     his     career     offender      status.       His     advisory

guideline range was 360 months-life in prison.

            Although Hopkins qualified as a career offender, the

above calculations, rather than the table at USSG § 4B1.1, were

used to determine his guideline range because his total offense

level from the table would have been 37 — less than the offense

level above.        See USSG § 4B1.1 (“If the offense level for a

                                            3
career criminal from the table * below is greater than the offense

level otherwise applicable, the offense level from the table

below shall apply.”).

             Application of Amendment 706 would not change Hopkins’

advisory     guideline       range     of    360      months-life.         Hopkins     was

responsible for a marijuana equivalency of 2407 kilograms, which

continues to correspond to base offense level 32.                               See USSG

§ 2D1.1(c)(4) (2008).              Under Amendment 706, this is reduced to

base       offense         level       30.       See    USSG    § 2D1.1,         comment.

(n.10(D) (i-ii)) (reduce base offense level by two levels if

offense involves cocaine base and another controlled substance).

With the three two-level adjustments described above, Hopkins’

total offense level is 36.               Under USSG § 4B1.1(b), the offense

level      set     forth   in   that     guideline’s         table      must    be   used.

Therefore, under Amendment 706, Hopkins’ total offense level is

37,    his   criminal       history     category       is    VI,   and    his    advisory

guideline range remains 360 months-life in prison.

             Because Amendment 706 “does not have the effect of

lowering         the   defendant’s      applicable          guideline     range”,     USSG

§ 1B1.10(a)(2)(B), p.s., Hopkins is ineligible for a sentence

reduction         under    § 3582(c)(2).         We    accordingly       affirm.        We

       *
       According to the table, because Hopkins’ offense statutory
maximum was life in prison, see 21 U.S.C. § 841(b)(1)(A), his
offense level as a career offender was 37. See USSG § 4B1.1.



                                             4
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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