US v. Eddie McLean, No. 08-8013 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8013 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EDDIE MCLEAN, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:02-cr-00037-BO-1; 5:07-cv-00119-BO) Submitted: April 16, 2009 Decided: April 23, 2009 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. William Gregory Duke, Greenville, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Eddie McLean seeks to appeal the district court s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008) motion. judge The order is not appealable unless a circuit justice or issues a certificate § 2253(c)(1) (2006). issue absent a constitutional prisoner substantial right. constitutional 28 this jurists appealability. 28 U.S.C. A certificate of appealability will not satisfies reasonable of by U.S.C. § standard would claims showing find the of the 2253(c)(2) by that of (2006). demonstrating any district denial assessment court is a A that of the debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). In this case, the district court granted a certificate of appealability convictions on the issue aggravated offenses separate for under § 4A1.2(a) (2007), in of whether assault U.S. light were McLean s properly Sentencing of Amendment two treated Guidelines 709 to prior the as Manual federal sentencing guidelines that revised this provision after McLean s sentencing. USSG § Because Amendment 709 was not made retroactive, see 1B1.10(c), and the assaults 2 were properly treated as separate offenses under the prior guideline in effect at the time of sentencing, we affirm the district court s denial of relief on this claim. As to McLean s remaining claims, we have independently reviewed the requisite record showing and for conclude a that he certificate has not of made the appealability. Accordingly, we deny a certificate of appealability and dismiss the appeal as to these claims. We grant McLean s motion for counsel to withdraw, in which counsel acquiesces. 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 IN PART; DISMISSED IN PART 3
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