United States v. McGuire

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1461
UNITED STATES OF AMERICA,
Appellee,
v.
MITCHELL MCGUIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lipez, Selya and Howard, Circuit Judges.
Mitchell McGuire on brief pro se.
Renée M. Bunker, Assistant U.S. Attorney, and Paula D.
Silsby, United States Attorney, on brief for appellee.
January 14, 2009
Per Curiam. This is defendant Mitchell McGuire's pro se
appeal from the district court's denial of a sentence reduction
under 18 U.S.C. § 3582 and the recently amended crack guidelines.1
The only argument that defendant makes on appeal is that the
district court denied him due process by treating his motion for
appointment of counsel as a motion for a sentence reduction and
denying it as such.
We need not consider the merits of that due-process
argument because any error in denying a reduction without first
giving defendant an opportunity to be heard was harmless; it is
clear that the reduction would have been correctly denied in any
event. United States v. Ganun, 547 F.3d 46, 47 (1st Cir. 2008)
(per curiam). As recognized by the district court, defendant was
statutorily ineligible for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) because his guideline range was based on the career
offender guideline rather than the crack guideline and therefore
was not "based on a sentencing range that has subsequently been
lowered" by the recent crack cocaine amendments. United States v.
Ayala-Pizarro, 2008 WL 5338459, at *1 (1st Cir. Dec. 23, 2008);
United States v. Caraballo, 2008 WL 5274853, at *5 (1st Cir. Dec.
22, 2008).
1
Amendment 706, effective November 1, 2007, reduced the base
offense levels for crack offenses by two levels. Amendment 713,
effective March 3, 2008, made amendment 706 retroactive.
-2-
Accordingly, the district court's order denying a
sentence reduction is affirmed.
-3-