                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7410


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ALEJANDRO REYES,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:03-cr-00195-JRS-3)


Submitted:    December 21, 2009             Decided:   January 15, 2010


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alejandro    Reyes, Appellant Pro Se.         Norval George Metcalf,
Assistant    United States Attorney,        Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Alejandro      Reyes   appeals      the   district     court’s     order

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

of sentence, construed as a motion for reconsideration of the

district court’s denial of Reyes’ previously filed § 3582(c)(2)

motions.    Reyes sought relief under Amendment 706 of the U.S.

Sentencing Guidelines Manual (“USSG”), which lowered the base

offense levels for drug offenses involving cocaine base.                         See

USSG § 2D1.1(c) (2007 & Supp. 2008); USSG App. C Amend. 706.

The district court concluded that Reyes was not entitled to the

benefit of Amendment 706 because he was sentenced as a career

offender.     Our review of the record reveals that, although Reyes

qualified as a career offender, USSG § 4B1.1 (2002), he was not

sentenced based on this status.              Nevertheless, for reasons that

follow, we conclude that the Amendment would not have the effect

of lowering Reyes’ 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”).

            Under § 3582(c)(2), the district court may reduce the

sentence “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    .   .   .   if     such   a

reduction is consistent with applicable policy statements issued

                                         2
by the Sentencing Commission.”                18 U.S.C. § 3582(c)(2); see also

USSG § 1B1.10, p.s.           “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   .    .    .   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.

            Reyes     was    held     responsible         for    13.58    kilograms    of

heroin   and     28       kilograms     of       cocaine        hydrochloride,      which

translated into a marijuana equivalency of 19,180 kilograms and

resulted in a base offense level of 36.                         With adjustments, his

total offense level was 38.              Although Reyes correctly states he

was sentenced under USSG § 2D1.1, his base offense level was not

based on the quantity of cocaine base for which he was held

accountable, but rather on the amount of the other controlled

substances for which he was held accountable, namely heroin and

cocaine hydrochloride.            Simply stated, Reyes’ sentence was not

“based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.”                   Had Reyes been sentenced after

Amendment 706 went into effect, Reyes’ total offense level would

remain 38, the career offender enhancement would not apply, and

                                             3
his   guideline     range     would     remain    the    same.       See     USSG

§§ 2D1.1(D)(ii)(II),        4B1.1(b).       Therefore,   Amendment   706     does

not   have   the   effect    of   lowering    Reyes’    guideline   range,    and

Reyes was not entitled to a sentence reduction.

             Because Reyes was ineligible for a sentence reduction

under § 3582(c)(2), we affirm the district court’s denial of

relief on this alternate ground.             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




                                        4
