UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                              No. 99-6269

LACY LEE MELVIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-89-391-JFM)

Submitted: July 30, 1999

Decided: August 19, 1999

Before WILKINS, HAMILTON, and WILLIAMS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lacy Lee Melvin, Appellant Pro Se. Andrea L. Smith, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland; John
Vincent Geise, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lacey Lee Melvin appeals the district court's order denying his 18
U.S.C. § 3582(c)(2) (1994) motion for resentencing. We affirm.

Melvin was convicted in 1990 of conspiracy to possess with intent
to distribute heroin and cocaine and distribution of cocaine. He was
sentenced to 188 months in prison. In United States v. Arrington, No.
90-5384 (4th Cir. Nov. 23, 1992) (unpublished), we affirmed his con-
victions and sentence.

In his motion for resentencing, Melvin argued that Amendment 439
to the United States Sentencing Guidelines (1998) should apply retro-
actively to him. See USSG § 1B1.10, p.s. "Amendment 439 revised
. . . [USSG] § 1B1.3 . . . to provide that a defendant will be held
accountable for the conduct of others only when the conduct was rea-
sonably foreseeable." United States v. Campbell, 168 F.3d 263, 269
(6th Cir. 1999).

The Amendment is a clarifying amendment. See id. ; United States
v. Drath, 89 F.3d 216, 217 (5th Cir. 1996); United States v. Lambert,
995 F.2d 1006, 1009 n.3 (10th Cir. 1993). In this circuit, a clarifying
amendment applies retroactively only when it goes into effect before
sentencing (when an earlier version of the guidelines is used) or when
the amendment takes effect while the defendant's appeal is pending.
See United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995).
Here, Amendment 439 went into effect on November 1, 1992, during
the pendency of Melvin's appeal. Under Capers , Amendment 439
should apply retroactively to Melvin.

However, application of the Amendment to Melvin has no practical
effect in this case. The commentary to USSG § 1B1.3 prior to its
amendment made clear that a defendant could be held accountable

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only for conduct that was reasonably foreseeable to him. See USSG
§ 1B1.3, comment. (n.1) (1990). Amendment 439 simply moved the
requirement of reasonable foreseeability from the commentary to the
guideline itself. Because Melvin was properly sentenced for reason-
ably foreseeable conduct, we affirm the denial of his motion for
resentencing. 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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