US v. Edward Robinson, No. 09-7077 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7077 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD J. ROBINSON, a/k/a Jason, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (2:92-cr-00163-6) Submitted: October 7, 2009 Decided: October 26, 2009 Before MICHAEL, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Edward J. Robinson, Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edward J. Robinson appeals the district court s order denying his motion for reduction U.S.C. § 3582(c) (2006). of sentence pursuant to 18 For the reasons set forth below, we affirm. Our review of the record reveals that the district court mistakenly assumed that Robinson was seeking relief under Amendment 706 of the U.S. Sentencing Guidelines Manual ( USSG ), which lowered involving the cocaine base base. offense USSG levels App. C, for Amend. drug 706. offenses In his § 3582(c) motion, however, Robinson clearly sought the benefit of Amendment 591. Although Amendment 591 applies retroactively, see USSG § 1B1.10(c), it clearly does not apply to Robinson s case. The Amendment simply requires that the initial selection of the offense guideline be based only on the statute or offense of conviction rather than on judicial findings of actual conduct not made by the jury. 1219 (11th Amendment Cir. 591 2005). applies United States v. Moreno, 421 F.3d 1217, In only short, to the [t]he choice plain of the wording of applicable offense guideline, not to the subsequent selection of the base offense level. Poindexter v. United States, 556 F.3d 87, 89 (2d Cir. 2009) (quoting United States v. Rivera, 293 F.3d 584, 586 (2d Cir. 2002)). 2 We USSG find § 2D1.1 as that the the district proper offense court correctly guideline for convictions under 21 U.S.C. §§ offense Robinson s 841(a), 846 (2006). Robinson argues that his base level was selected Although improperly enhanced based on the district court s determination of drug quantity, Amendment 591 does not constrain the use of judicially found facts to select a base offense level within the relevant guideline. We Robinson s dispense Moreno, 421 F.3d at 1220. therefore § 3582(c) with oral affirm motion argument the on district this because court s alternate the denial ground. facts and of We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3

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