                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-7672



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JAMES EDWARD SMITH,      a/k/a   Smitty,    a/k/a
Dumptruck Smitty,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-90-71-R; CA-03-541-3)


Submitted: January 29, 2004                 Decided:   February 9, 2004


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Edward Smith, Appellant Pro Se. Gurney Wingate Grant, II,
Assistant United States Attorney, Amy Eileen Pope, Special
Assistant United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James Edward Smith appeals the district court’s order

denying his motion to modify his sentence pursuant to 18 U.S.C.

§ 3582 (2000).      In 1991, a jury convicted Smith of five counts for

his participation in a drug trafficking scheme. Smith’s conviction

was affirmed on direct appeal.          In 1994, Smith’s first 28 U.S.C.

§ 2255 (2000) motion was denied.           In 2001, this court dismissed

Smith’s second 2255 motion as successive.

       On May 23, 2003, Smith filed the instant action, requesting

that his sentence be modified based upon Amendment 645 to the

United States Sentencing Guidelines. However, Amendment 645 is not

listed in U.S. Sentencing Guidelines Manual § 1B1.10 (2002), which

allows   for    retroactive    reductions    of   a   sentence    based   upon

amendments     to   the   Guidelines.     Accordingly,    under    the    plain

language of the guideline, the district court properly determined

that a sentence reduction was not authorized.            See USSG § 1B1.10,

p.s.

           Additionally, Smith’s claim that the district court had

the discretion to give retroactive effect to Amendment 645 as a

clarifying amendment is also without merit.               In this Circuit,

clarifying amendments apply retroactively when the amendment takes

place before sentencing, or while direct appeal is pending.                See

United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995); United

States v. Drath, 89 F.3d 216, 217 (5th Cir. 1996).          Because neither


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of   these   conditions    exist   in   this   case,   the   district   court

correctly determined that it lacked the authority to grant Smith a

sentence reduction.       Capers, 61 F.3d at 1109.

             Accordingly, we affirm the district court’s order.            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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