United States v. Rodriquez

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 7, 2010
• Docket: 10-7016
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-7016

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE OSEGUERA RODRIQUEZ, a/k/a Jose Oseguera,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:01-cr-00104-FDW-5)

Submitted: November 3, 2010 Decided: December 7, 2010

Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jose Oseguera Rodriquez, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jose Oseguera Rodriquez appeals the district court’s

orders denying his motion for a reduction of sentence pursuant

to 18 U.S.C. § 3582(c) (2006) and denying his subsequent motion

for reconsideration. For the reasons set forth below, we

affirm.

Our review of the record reveals that the district

court mistakenly assumed that Oseguera Rodriquez was seeking

relief under Amendment 706 to the U.S. Sentencing Guidelines

Manual (“USSG”), which lowered the base offense levels for drug

offenses involving cocaine base. USSG App. C, Amend. 706. In

his § 3582(c) motion, however, Oseguera Rodriquez clearly sought

the benefit of Amendment 709, which altered the computation of

criminal history points for certain misdemeanors and petty

offenses.

Amendment 709, however, did not become effective until

November 1, 2007, and does not apply retroactively. See USSG

App. C, Amend. 709 (providing effective date); USSG § 1B1.10(c),

p.s. (listing amendments that apply retroactively); see also

United States v. Dunphy, 551 F.3d 247, 249 n.2 (4th Cir.)

(noting that an amendment to the Guidelines may be applied

retroactively only when the amendment is expressly listed in

USSG § 1B1.10(c)), cert. denied, 129 S. Ct. 2401 (2009).

2 Because Oseguera Rodriquez is clearly not entitled to

a reduction based on Amendment 709, we affirm the district

court’s orders on this alternate ground. 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