                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 08-1461

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                           MITCHELL MCGUIRE,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                                  Before

              Lipez, Selya and Howard, Circuit Judges.



     Mitchell McGuire on brief pro se.
     Renée M. Bunker, Assistant U.S. Attorney, and Paula D.
Silsby, United States Attorney, on brief for appellee.



                           January 14, 2009
          Per Curiam.   This is defendant Mitchell McGuire's pro se

appeal from the district court's denial of a sentence reduction

under 18 U.S.C. § 3582 and the recently amended crack guidelines.1

The only argument that defendant makes on appeal is that the

district court denied him due process by treating his motion for

appointment of counsel as a motion for a sentence reduction and

denying it as such.

          We need not consider the merits of that due-process

argument because any error in denying a reduction without first

giving defendant an opportunity to be heard was harmless; it is

clear that the reduction would have been correctly denied in any

event.   United States v. Ganun, 547 F.3d 46, 47 (1st Cir. 2008)

(per curiam).   As recognized by the district court, defendant was

statutorily ineligible for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) because his guideline range was based on the career

offender guideline rather than the crack guideline and therefore

was not "based on a sentencing range that has subsequently been

lowered" by the recent crack cocaine amendments.   United States v.

Ayala-Pizarro, 2008 WL 5338459, at *1 (1st Cir. Dec. 23, 2008);

United States v. Caraballo, 2008 WL 5274853, at *5 (1st Cir. Dec.

22, 2008).



     1
      Amendment 706, effective November 1, 2007, reduced the base
offense levels for crack offenses by two levels. Amendment 713,
effective March 3, 2008, made amendment 706 retroactive.

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          Accordingly,   the   district   court's   order   denying   a

sentence reduction is affirmed.




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