United States v. Holmes , 302 F. App'x 200 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6513
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT HOLMES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:96-cr-00108-002)
Submitted: November 5, 2008 Decided: December 9, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Albert Holmes, Jr., Appellant Pro Se. Jean Barrett Hudson,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Holmes, Jr., appeals the district court’s order
denying his motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) (2006). Holmes argues that the district court erred
by failing to reduce his sentence based upon Amendment 706 of the
Guidelines, see U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(c) (2007 & Supp. 2008); USSG App. C, Amend. 706. (E.R.
25). We have reviewed the record and find no reversible error.
Accordingly, we affirm substantially for the reasons stated by the
district court. United States v. Holmes, No. 7:96-cr-00108-002
(W.D. Va. March 14, 2008).* 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
*
We need not decide whether a defendant’s history of
institutional infractions is an appropriate consideration
justifying the denial of a § 3582 motion. See United States v.
Rodriguez-Pena, 470 F.3d 431, 433 (1st Cir. 2006) (holding post-
judgment rehabilitation “provides no basis either for a sentencing
reduction in its own right . . . or for a further downward
departure where a § 3582(c) reduction is ordered for some other
reason”); United States v. Hasan, 245 F.3d 682, 690 (8th Cir. 2001)
(holding district court erred in granting § 3582(c)(2) sentence
reduction based on post-sentence conduct). Because the district
court provided an adequate alternative rationale explaining why the
original sentence remained appropriate pursuant to § 3553(a), the
district court did not abuse its discretion in denying the § 3582
motion.
2