United States v. Hernandez

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-7804

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CARLOS ENRIQUEZ HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, District Judge. (CR-95-262; CA-03-484)

Submitted: May 7, 2004 Decided: May 24, 2004

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Carlos Enriquez Hernandez, Appellant Pro Se. Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Carlos Enriquez Hernandez appeals the district court’s

order denying his motion to modify his term of imprisonment.* We

have reviewed the record and find no reversible error. As the

district court held, Amendment 640 to the Sentencing Guidelines is

a substantive amendment, which cannot be retroactively applied

absent express authorization in U.S.S.G. § 1B1.10(c). See U.S.

Sentencing Guidelines Manual § 1B1.10(a) (2002); United States v.

Hernandez, No. CR-95-262 (M.D.N.C. Oct. 28, 2003). Amendment 640

is not listed in § 1B1.10(c). Accordingly, we affirm the judgment

of the district court. 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

* Hernandez correctly argues that a certificate of appealability is not required for review of the district court’s denial of his motion to modify his term of imprisonment under 18 U.S.C. § 3582(c)(2) (2000). See 28 U.S.C. § 2253(c)(1)(B) (2000).

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