US v. Walter White, No. 09-7790 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7790 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WALTER DUANE WHITE, Defendant Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:05-cr-00050-IMK-JES-6) No. 09-2136 In Re: WALTER DUANE WHITE, Petitioner. On Petition for Writ of Mandamus. Submitted: April 7, 2010 (1:05-cr-00050-IMK-JES) Decided: April 29, 2010 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. No. 09-7790 affirmed; No. 09-2136 petition denied by unpublished per curiam opinion. Walter Duane White, Appellant Pro Se. Shawn Angus Morgan, Zelda Elizabeth Wesley, Assistant United States Attorneys, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: On November distribution of 2, heroin 2005, and Walter was White sentenced pled to guilty 100 to months imprisonment. On July 22, 2009, he filed a motion to correct his based sentence Sentencing on Guidelines, Amendment November 1, 2007. * which 709 to the became United States effective on On July 29, 2009, the district court denied White s motion on the grounds that Amendment 709 was not made retroactively applicable; thus, it could not serve as a basis for reducing his 2005 sentence. court s order. White appealed the district He also filed a petition for mandamus requesting that this court direct the district court to reduce his sentence pursuant to Amendment 709. This court reviews rulings on § 3582(c)(2) motions for abuse of discretion. (4th Cir. 2004). United States v. Goines, 357 F.3d 469, 478 A district court abuses its discretion if it . . . bases its exercise of discretion on an erroneous factual or legal premise. (4th Cir. 2008) (4th Cir. 1993)). DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (citing James v. Jacobson, 6 F.3d 233, 239 Under § 3582(c)(2), the district court may modify the term of imprisonment of a defendant who has been * Amendment 709 alters the computation of criminal history points for multiple prior related sentences and certain misdemeanors and petty offenses. See USSG App. C Amend. 709. 3 sentenced . . . based on a sentencing range that has subsequently been lowered, if the amendment is listed in the Guidelines as retroactively applicable. See 18 U.S.C. § 3582(c)(2); see also USSG § 1B1.10(c), p.s. Here, it is clear retroactively applicable. see also United States that Amendment 709 was not made See USSG § 1B1.10(c), p.s. (2008); v. Dunphy, 551 F.3d 247, 249 n.2 (4th Cir.), cert. denied, 129 S. Ct. 2401 (2009); United States v. McHan, 386 F.3d 620, 622 (4th Cir. 2004). Accordingly, the district court did not err in denying White s § 3582 motion. As for White s suggestion that he is entitled mandamus relief, we note that it is a drastic remedy that is to be used only in extraordinary circumstances. See, e.g., Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). The party seeking mandamus relief carries the heavy burden of showing that he has no other adequate means to attain the relief he desires and that his entitlement United States 2003). v. to such relief Moussaoui, 333 is clear F.3d 509, and indisputable. 516-17 (4th Cir. Mandamus may not be used as a substitute for appeal. See In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). Here, White is clearly using mandamus as a substitute for and/or supplement to his appeal. to show that he is clearly and 4 Moreover, White has failed indisputably entitled to a sentence reduction under § 3582. As stated above, Amendment 709 was not made retroactively applicable. Accordingly, we affirm the district court s judgment in No. 09-7790, deny White s petition for mandamus relief in No. 09-2136, and deny White s motion for appointment of counsel. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. No. 09-7790 AFFIRMED No. 09-2136 PETITION DENIED 5
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