                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-7079


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RUSSELL GARNET TURNER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:99-cr-00071-RLV-5)


Submitted:   February 27, 2012            Decided:   March 29, 2012


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell Garnet Turner, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Russell Turner appeals the district court’s denial of

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

sentence.         We affirm.



                                            I

                 Turner   pled   guilty     to     conspiracy    to    possess    with

intent to distribute cocaine and cocaine base, in violation of

21    U.S.C.      §§ 841(a)(1),     846    (2000).       The   indictment   did       not

allege      a    specific    drug   amount.        The   Government    filed     an    18

U.S.C. § 851 information, thereby subjecting Turner to a penalty

of “not more than 30 years” for his offense.                          See 21 U.S.C.

§ 841(b)(1)(C) (2000).

                 Turner stipulated in his plea agreement that he was

responsible for at least fifty grams, but not more than 150

grams, of cocaine base.              His base offense level was 32.                   See

U.S.    Sentencing        Guidelines      Manual   § 2D1.1(c)(4)      (1998).         Two

levels were added for obstruction of justice.                    See USSG § 3C1.1.

His total offense level was 34, his criminal history category

was VI, and his advisory Guidelines range was 262-327 months.

                 Turner qualified as a career offender.               Because, under

§ 841(b)(1)(C), the maximum term of imprisonment to which he was

subject was thirty years, his offense level as a career offender

was 34.         His criminal history category as a career offender was

                                            2
VI.     See USSG § 4B1.1.          Turner’s advisory Guidelines range as a

career offender was 262-327 months — the same range as that

calculated under the Drug Quantity Table.

              The district court sentenced Turner in 2001 to 360

months in prison — above the advisory Guidelines range.                                  The

court did not explain its reason for this departure.

              Turner appealed.          We dismissed the appeal in part and

affirmed in part.            We concluded that Turner had knowingly and

intelligently         waived     his   right      to    appeal     all   claims     except

claims of ineffective assistance of counsel and that his claim

of    ineffective       assistance         lacked      merit.       United      States   v.

Turner, 43 F. App’x 704 (4th Cir. 2002).



                                             II

              In his § 3582(c)(2) motion, Turner sought the benefit

of    Amendment     706     of   the   Guidelines,         which    reduced      the   base

offense      levels    applicable      to    most      offenses     involving      cocaine

base.     We review the denial of a § 3582(c)(2) motion for abuse

of discretion.         United States v. Goines, 357 F.3d 469, 476 (4th

Cir. 2004).

              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

                                              3
retroactively applicable.        18 U.S.C. § 3582(c)(2); see also USSG

§ 1B1.10, p.s.       Further, “[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 listed in subsection (c) does not have the effect of

lowering    the    defendant’s    applicable         guideline    range.”    USSG

§ 1B1.10(a)(2)(B),      p.s.      The       commentary    to     the    guideline

reiterates that:

       [e]ligibility for consideration under § 3582(c)(2) is
       triggered by an amendment listed in subsection (c)
       that   lowers     the   applicable   guideline  range.
       Accordingly, a reduction in the defendant’s term of
       imprisonment   is   not  authorized  under   18 U.S.C.
       § 3582(c)(2) and is not consistent with this policy
       statement if: . . . (ii) an amendment listed in
       subsection (c) is applicable to the defendant but the
       amendment does not have the effect of lowering the
       defendant’s applicable guideline range.

USSG    § 1B1.10,     comment.     (n.1(A)).         Amendment    706     applies

retroactively.



                                     III

            Application of Amendment 706 does not have the impact

of    lowering    Turner’s   Guidelines     range.       Under   USSG    § 2D1.1,

Turner’s base offense level is reduced from 32 to 30, see USSG

§ 2D1.1(c)(5) (2008), and his advisory Guidelines range is 210-

262    months.       However,    Turner     is   a    career     offender.    His

Guidelines range under USSG § 4B1.1 is unaffected by Amendment


                                        4
706, and it remains 262-327 months.          Because this is higher than

the range calculated under the Drug Quantity Table, it is the

determinative    Guidelines     range.      Amendment      706    thus   did   not

“have the effect of lowering [Turner’s] applicable Guidelines

range.”     See USSG § 1B1.10, comment. (n.1(A)).            Accordingly, the

district    court   correctly    denied    the    motion   for    reduction     of

sentence.



                                     IV

            We   therefore      affirm.      We     deny    the     motion     for

appointment of counsel and 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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