                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1736
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Arkansas.
                                        *
Christopher Levell McFadden,            * [PUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 21, 2008
                                Filed: May 1, 2008
                                 ___________

Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

      Christopher McFadden appeals from the district court’s1 order denying his
motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) based on
Amendment 706 to the United States Sentencing Guidelines Manual (USSG), which
reduced the base offense levels in USSG § 2D1.1(c) based on the quantity of cocaine
base (crack).




      1
        The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
       McFadden pleaded guilty to conspiracy to possess with intent to distribute more
than 50 grams of a mixture containing cocaine base and to using a communication
facility to distribute cocaine base. He was sentenced to 108 months’ imprisonment.

       Although McFadden’s original drug quantity-driven sentencing range was 188
to 235 months’ imprisonment, he faced a 108-month statutory maximum (five-year
maximum on the conspiracy charge, see 18 U.S.C. § 371, and a four-year maximum
on the use of communication facility, see 21 U.S.C. § 843(b)(d)), which became his
guidelines sentencing range, see USSG § 5G1.1(a) (“Where the statutorily authorized
maximum sentence is less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the guideline sentence.”).

      A two-level decrease based on drug quantity would result in a sentencing range
of 151 to 188 months’ imprisonment, with the result that McFadden’s newly
calculated guideline range would still be limited by USSG § 5G1.1(a) and would
remain unchanged at 108 months. McFadden is thus not entitled to a reduction under
Amendment 706. See USSG § 1B1.10(a)(2)(B) (“A reduction in the defendant’s term
of imprisonment . . . is not authorized under 18 U.S.C. § 3582(c)(2) if–[a]n
amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.”).

       The district court’s judgment denying McFadden any relief pursuant to the
retroactive amendments is summarily affirmed. See 8th Cir. R. 47A(a).
                       ______________________________




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