US v. Marcel Barnes, No. 09-7702 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7702 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCEL BARNES, a/k/a Larry Kevin Brown,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. (2:94-cr-00052-RBS-3) Submitted: June 9, 2010 Decided: July 19, 2010 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Marcel Barnes, Appellant Assistant United States Appellee. Pro Se. Attorney, Laura Marie Everhart, Norfolk, Virginia, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcel Barnes appeals the district court s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We affirm. Under § 3582(c)(2), the district court may reduce the term of imprisonment of a defendant who has been sentenced . . . based on a sentencing range that has subsequently been lowered . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2); see also U.S. Sentencing Commission Manual § 1B1.10, p.s. (2009). Further, [a] reduction in the defendant s term of imprisonment is not consistent with this policy statement and therefore is not authorized under . . . § 3582(c)(2) if . . . an amendment listed in subsection (c) does not have the effect guideline range. of lowering the defendant s applicable USSG § 1B1.10(a)(2)(B), p.s. A defendant may obtain relief under § 3582(c)(2) only if an amendment to the sentencing guidelines has lowered the defendant s advisory guidelines range. Barnes was therefore not entitled to relief under § 3582(c)(2) based on his claims that his criminal history points were incorrectly tallied and that his sentence violated the rules of Gall v. United States, 552 U.S. 38 (2007), United States v. Booker, 543 U.S. 220 (2005), Apprendi v. New Jersey, 530 U.S. 466 (2000), and other cases. 2 Barnes maintained that under Amendment 709 of the Guidelines, a misdemeanor conviction for assault on a female, for which he received one criminal history point, would now not be counted, placing him in a lower criminal history category. Amendment 709, which addressed in part whether and when certain misdemeanor history and score, § 1B1.10(c), petty offenses does not p.s. are apply Therefore, included in retroactively. Barnes was not the criminal See entitled USSG to a reduction based on Amendment 709. We accordingly affirm. 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 3
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