United States v. Tavarras Rhodes ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAVARRAS RHODES, a/k/a Tavarras Jerrell Rhodes,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00082-REP-2; 3:11-cv-00109-REP)
Submitted: June 20, 2013 Decided: June 25, 2013
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Tavarras Rhodes, Appellant Pro Se. Richard Daniel Cooke, Angela
Mastandrea-Miller, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tavarras Rhodes seeks to appeal the district court’s
orders denying relief on his 28 U.S.C.A. § 2255 (West Supp.
2013) motion and denying his 18 U.S.C. § 3582(c)(2) (2006)
motion. For the reasons that follow, we deny a certificate of
appealability and dismiss in part, and affirm in part.
The order denying § 2255 relief is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Rhodes has not made the requisite showing. Accordingly, we
2
deny a certificate of appealability and dismiss the appeal from
the denial of § 2255 relief.
Turning to the § 3582 order, the district court denied
relief based on the mistaken premise that Rhodes sought relief
under the Guidelines amendments pertaining to crack cocaine. In
fact, Rhodes sought relief based on Amendment 742, which
eliminated the recency enhancement previously found in U.S.
Sentencing Guidelines Manual § 4A1.1(e). 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); see also USSG § 1B1.10(a)(2)(A), (c), p.s.
Amendment 742 is not among those listed in USSG § 1B1.10(c),
p.s., and therefore is not retroactively applicable. See United
States v. Dunphy, 551 F.3d 247, 249 n.2 (4th Cir. 2009). We
affirm the denial of § 3582 relief on this basis.
Accordingly, we deny a certificate of appealability
and dismiss in part, and affirm in part. Rhodes’ request for
appointment of counsel is denied. We dispense with oral
argument because the facts and legal contentions are adequately
3
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
4