               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 08-1285

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                             NGHIA NGUYEN,

                       Defendant, Appellant.


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

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



                                 Before

                        Lynch, Chief Judge,
              Torruella and Boudin, Circuit Judges.



     Nghia Nguyen on brief pro se.
     Reneé M. Bunker, Assistant U.S. Attorney, and Paula D.
Silsby, United States Attorney, on brief for appellee.



                          January 16, 2009
              Per Curiam.     This is an appeal from the district court's

denial of a reduction in sentence under 18 U.S.C. § 3582(c)(2)1 and

the   recently     amended     guidelines   for    cocaine   base       ("crack")

offenses.2 In his pro se brief,3 defendant argues that the district

court erred in, first, treating his request for appointment of

counsel as a request for a reduction of sentence under section

3582(c)(2); second, denying the reduction before the effective date

of the retroactive amendment to the crack guidelines; and, third,

denying the reduction on the ground that he is a career offender.

In the course of making those arguments, he also faults the

district court for treating the guidelines as mandatory and failing

to apply the factors set forth in 18 U.S.C. § 3553(a).                   For the

reasons discussed below, we find those arguments unpersuasive and

therefore      affirm   the   district   court's    denial   of     a    sentence

reduction in this case.




      1
      That provision creates an exception to the general rule that
a district court "may not modify a term of imprisonment once it has
been imposed." 18 U.S.C. § 3582(c). Under section 3582(c)(2), the
district court may reduce a term of imprisonment previously imposed
"in the case 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."
      2
      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.
      3
          Defendant has not requested appointment of counsel on appeal.

                                      -2-
          On the face of his request for appointment of counsel, it

is clear that defendant was seeking appointment of counsel for the

sole purpose of representing him in a proceeding for a reduced

sentence under 18 U.S.C. § 3582(c)(2) and the recently promulgated,

retroactive amendments to the crack guidelines. The district court

therefore reasonably construed defendant's submission as a request

both for appointment of counsel to represent him such a proceeding

and to reduce his sentence under those provisions. Anyway, even in

the absence of a motion by the defendant, the district court had

authority to initiate proceedings for a reduced sentence "on its

own motion."    18 U.S.C. § 3582(c)(2).   Therefore, any error in

construing defendant's submission as such a motion was harmless.

Any error in prematurely denying a reduction was also harmless,

since it is clear that the result would have been no different if

the court had waited thirteen additional days to act on defendant's

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

(per curiam).

          Defendant's argument that the district court erred in

excluding career offenders from receiving a reduction under the

amended guidelines is foreclosed by this court's recent decisions

in United States v. Caraballo, 2008 WL 5274853 (1st Cir. Dec. 22,

2008), and United States v. Ayala-Pizarro, 2008 WL 5338459 (1st

Cir. Dec. 23, 2008), both holding that, where, as here, a defendant

originally was sentenced as a career offender rather than as a


                               -3-
crack cocaine offender, his original sentence was not "based on a

sentencing     range   that   has   subsequently    been   lowered"       by   the

retroactive crack cocaine amendment, and he is therefore ineligible

for a sentence reduction under 18 U.S.C. § 3582(c)(2).              Caraballo,

2008 WL 5274853, at *5; Ayala-Pizarro, 2008 WL 5338459, at * 1.

This panel is not free to disregard those rulings, United States v.

Lewis, 517 F.3d 20, 23-24 (1st Cir. 2008), nor do we see any reason

to do so.

              Defendant's further argument that the district court

erred in treating the guidelines as mandatory and failing to

consider the factors set forth in 18 U.S.C. § 3553(a) also falls

short.    Whatever role section 3553(a) and the advisory nature of

the guidelines may play in the district court's discretionary

determination of whether and to what extent to reduce a defendant's

sentence under section 3582(c)(2), where applicable--issues we need

not decide here--those considerations do not come into play where,

as    here,   a   defendant   is    statutorily    ineligible      even   to    be

considered for such a reduction. Caraballo, 2008 WL 5274853, at *5

n.4

              Accordingly,    the   district   court's     order    denying     a

sentence reduction is affirmed.         1st Cir. R. 27.0(c).




                                      -4-
