United States v. Tarrant Counts , 500 F. App'x 220 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7266
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TARRANT COUNTS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:96-cr-00155-FDW-3)
Submitted: December 13, 2012 Decided: December 18, 2012
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tarrant Counts, Appellant Pro Se. Robert J. Higdon, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tarrant Counts appeals the district court’s order
granting his motion seeking a reduction of sentence under 18
U.S.C. § 3582(c)(2) (2006). 1 This court reviews the denial of a
§ 3582(c)(2) motion for abuse of discretion. United States v.
Munn, 595 F.3d 183, 186 (4th Cir. 2010).
Although the core of Counts’ assertions on appeal
takes issue with the district court’s failure to reduce his
sentence to the full extent that Counts requested, Counts
misapprehends the application of the Guidelines to his case.
Although Counts was designated a career offender under U.S.
Sentencing Guidelines (“USSG”) § 4B1.1 at his original
sentencing, Counts’ initial sentence was based on the crack
Guidelines provisions in USSG § 2D1.1 because the § 2D1.1
provisions resulted in a higher offense level than the
§ 4B1.1(b) provisions. See USSG § 4B1.1(b) (providing that the
offense level calculated under the career offender guidelines
applies only if it is “greater than the offense level otherwise
applicable”).
Amendment 750, however, reduced Counts’ offense level
as calculated under the crack guidelines to a level that is
1
Although the district court granted Counts’ motion, the
reduction granted by the court did not reduce Counts’ sentence
to the full extent that he had requested.
lower than his offense level as calculated under the career
offender guidelines. Compare USSG § 2D1.1(c)(3) & (b)(1) with
USSG § 4B1.1(b)(1). As a result, the career offender guidelines
now control. See USSG § 4B1.1(b).
Under the Guidelines provisions now applicable to
Counts, the district court gave Counts the greatest possible
deduction that he could have received. See USSG
§ 1B1.10(b)(2)(A). We discern no abuse of discretion in the
district court’s refusal to reduce Counts’ sentence to a degree
larger than the Guidelines permit. See also Dillon v. United
States, 130 S. Ct. 2683, 2690-92 (2010) (court may not revisit
any Guidelines application decisions other than those affected
by the applicable amendment); United States v. Stewart, 595 F.3d
197, 201 (4th Cir. 2010) (same). 2
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 this court and argument would not aid the decisional
process.
AFFIRMED
2
To the extent that Counts claims that the counsel who
moved for § 3582(c)(2) relief on his behalf deprived him of
effective assistance of counsel, we decline to reach Counts’
claim because the record does not conclusively show any such
ineffectiveness. See United States v. Baldovinos, 434 F.3d 233,
239 (4th Cir. 2006).
3