United States v. Barnes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCEL BARNES, a/k/a Larry Kevin Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-94-52; CA-94-51-2)
Submitted: June 8, 2005 Decided: July 6, 2005
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Marcel Barnes, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM;
Marcel Barnes, a federal prisoner, appeals the district
court’s orders (1) construing his 28 U.S.C. § 3582(c)(2) (2000)
motion as a successive and unauthorized 28 U.S.C. § 2255 (2000)
motion and dismissing it for failure to obtain authorization to
file such a successive motion and (2) denying his motion for
reconsideration. We vacate the district court’s orders and remand
for further proceedings.
In his § 3582(c)(2) motion, Barnes claimed that he was
entitled to benefit retroactively from Amendment 505 to the U.S.
Sentencing Guidelines Manual. That Amendment, which became
effective on November 1, 1994, approximately three months after
Barnes was sentenced to life in prison for conspiracy to distribute
heroin, cocaine, cocaine base, and marijuana, reduced the highest
base offense level for drug offenses under USSG § 2D1.1(c) to 38.
Barnes contends that application of Amendment 505 to his case would
reduce his sentence from life in prison to 360 months.* Amendment
505 applies retroactively; whether a particular prisoner’s sentence
should be reduced lies within the trial court’s discretion. See
USSG § 1B1.10, p.s & comment. (backg’d) (2004).
Instead of construing Barnes’ motion as a successive
§ 2255 motion, the district court should have addressed the merits
*
We do not have the criminal record, notably the presentence
investigation report, before us on appeal, and do not express an
opinion on the accuracy of Barnes’ contention.
- 2 -
of the motion under § 3582(c)(2). See United States v. Goines, 357
F.3d 469, 476-77 (4th Cir. 2004); United States v. Armstrong, 347
F.3d 905, 907 (11th Cir. 2003); Hamilton v. United States, 67 F.3d
761, 763-64 (9th Cir. 1995). Accordingly, we vacate the judgment
of the district court and remand for further proceedings. 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.
VACATED AND REMANDED
- 3 -