                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6066



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROHAN ST. JOSEPH KEATING,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CR-93-66-2)


Submitted:   May 28, 2004                  Decided:   June 15, 2004


Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rohan St. Joseph Keating, Appellant Pro Se. Janet S. Reincke,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Rohan   St.    Joseph     Keating      appeals   from   the   district

court’s   denial   of    his   18   U.S.C.    §   3582(c)(2)   (2000)     motion.

Keating sought reduction of his sentence based on Amendment 591 to

the sentencing guidelines.          Finding no error, we affirm.

           We review the denial of a motion to modify sentence for

abuse of discretion.       United States v. Turner, 59 F.3d 481, 483

(4th Cir. 1995).        The sentencing court may reduce a defendant’s

term of imprisonment if his sentence was based on a sentencing

range subsequently lowered by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2). Section 1B1.10 of the sentencing guidelines provides

that, where the guidelines range applicable to a defendant has

subsequently been lowered as a result of an amendment listed in

subsection (c), a reduction is authorized under § 3582(c)(2). U.S.

Sentencing Guidelines Manual § 1B1.10 (2003).

           Amendment 591 is one of the listed amendments that

applies retroactively.         USSG § 1B1.10(c).       Amendment 591 requires

the sentencing court to apply the offense guideline referenced in

the Statutory Index in Appendix A for the statute of conviction.

USSG App. C, Amend. 591.        The amendment clarified USSG §§ 1B1.1 and

1B1.2, which some circuits previously interpreted as permitting a

court to use an offender’s actual conduct in selecting the offense

guideline, even if that conduct was not charged in the indictment.

See United States v. Rivera, 293 F.3d 584, 586-87 (2d Cir. 2002).


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We find that the district court acted in accordance with USSG

§§ 1B1.1 and 1B1.2 at sentencing when it consulted the Statutory

Index and referred to USSG § 2D1.1 as the proper guideline for

Keating’s convictions under 21 U.S.C. §§ 841, 846 (2000).                    See

USSG, App. A.

           Keating argues that his guideline range was improperly

based on quantities and types of drugs determined by the sentencing

court, resulting in a base offense level higher than the offense

level supported by the facts alleged in the indictment or found by

the jury. Keating is confused, however, because Amendment 591 does

not impact how the base offense level is calculated within the

appropriate   guideline.       Instead,    Amendment   591    affects    which

guideline will be used in determining the base offense level.

Here,   Keating   does   not   challenge   the   guidelines    used     by   the

district court; he simply challenges the court’s application of the

guideline, an issue not addressed by Amendment 591.

           Accordingly, we affirm the district court’s denial of

Keating’s motion. 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




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