United States v. Rodriquez ( 2010 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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
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