UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-6055

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHN RICHARD PROCTOR,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:04-

cr-00160-RWT-1)

Submitted: September 30, 2010 Decided: October 19, 2010

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

John Richard Proctor, Appellant Pro Se. Steven M. Dunne, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

John Richard Proctor appeals from the district court’s 

order denying his 18 U.S.C. § 3582(c) (2006) motion for a 

reduction in sentence pursuant to Amendment 706 of the 

Sentencing Guidelines. The district court determined that, 

because Proctor qualified as a career offender, he was not 

eligible for a reduction in sentence based on Amendment 706.

Proctor pled guilty to possession with intent to 

distribute 50 grams or more of cocaine base and unlawful 

possession of firearms and ammunition by a convicted felon. At 

sentencing, Proctor was held accountable for more than 1.5 

kilograms of crack cocaine, resulting in a base offense level of 

38. Although Proctor qualified as a career offender, the 

offense level determined under U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(1) (2008) resulted in a higher offense level, so 

Proctor’s offense level was not changed under the career 

offender guideline. After a two-level reduction for acceptance 

of responsibility, Proctor’s adjusted offense level was 36, his 

criminal history category VI, and his guideline range 324 to 405 

months. The district court sentenced him to 324 months’ 

imprisonment.

In November 2009, Proctor filed a motion for reduction 

of sentence pursuant to 18 U.S.C. § 3582(c), based on Amendment 

706, which reduced the offense levels applicable to crack 
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cocaine offenses. The district court denied the motion, 

concluding that, because Proctor was sentenced under the career 

offender guideline, he cannot benefit from the amendment to the 

drug quantity table. On appeal from that order, Proctor 

contends that he was not sentenced as a career offender and 

therefore is eligible for a reduction under the amendment. We 

agree.

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

term of imprisonment “of a defendant who has been sentenced 

. . . based on a sentencing range that has subsequently been 

lowered,” if the amendment is listed in the Guidelines as 

retroactively applicable. 18 U.S.C. § 3582(c)(2). In the 

context of Amendment 706, a defendant whose offense of 

conviction involved crack cocaine is eligible for a reduced 

sentence only if the amendment lowers the defendant’s applicable 

guideline range. See United States v. Lindsey, 556 F.3d 238, 

244 (4th Cir.), cert. denied, 130 S. Ct. 182 (2009).

Although Proctor was determined to be a career 

offender, his guideline range was determined with reference to 

the quantity of drugs attributed to him under USSG § 2D1.1

because the guideline range produced by the career offender 

designation was lower. See USSG § 4B1.1(b) (“[I]f the offense 

level for a career offender . . . is greater than the offense 

level otherwise applicable, the offense level [generated by the 
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career offender designation] shall apply.”). Proctor’s offense 

level determined by reference to the drug quantity was 38; the 

career offender guideline was 37. Because the offense level 

determined under the drug tables was higher, that level was used 

to determine Proctor’s sentence. Thus, Proctor’s sentence was, 

in fact, based on a guideline range that was subsequently 

lowered by Amendment 706. Accordingly, the district court’s 

finding that Amendment 706 did not authorize a sentence 

reduction for Proctor because of his career offender designation

was erroneous. See United States v. McGee, 553 F.3d 225, 230 

(2d Cir. 2009) (concluding that a defendant who was designated 

as a career offender but ultimately explicitly sentenced based 

on a guideline range calculated by USSG § 2D1.1 was eligible for 

a sentence reduction).

Applying the amended drug quantity table in § 2D1.1 

results in an offense level of 36, based on 1.5 kilograms of 

crack cocaine. The career offender guideline requires offense 

level 37, unless a higher level is determined based on the 

offense of conviction. Because the offense level under the 

career offender guideline is higher than the level determined by 

reference to the drug quantity, Proctor’s offense level would be 

37. After the two-level reduction for acceptance of 

responsibility, his total offense level would be 35 and, at 

criminal history category VI, his guideline range would be 292 
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to 365 months. Because application of Amendment 706 to 

Proctor’s sentencing results in a sentencing range that is lower 

than the 324 to 405 month range applicable before Amendment 706, 

a reduction in Proctor’s sentence is authorized under § 3582(c). 

Because the district court mistakenly concluded that it was not

so authorized, we vacate the district court’s order and remand 

to the district court for a determination of whether the 

reduction should be applied in Proctor’s case.*

 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.

VACATED AND REMANDED

 * We determine in this opinion that a reduction is 

authorized; we express no opinion as to whether a reduction in 

Proctor’s sentence is warranted. See United States v. Stewart, 

595 F.3d 197, 200 (4th Cir. 2010) (providing that determination 

of whether to grant reduction of sentence authorized under 

Amendment 706 is within discretion of the district court judge).