US v. Jose Rodriquez, No. 10-7016 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7016 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE OSEGUERA RODRIQUEZ, a/k/a Jose Oseguera, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:01-cr-00104-FDW-5) Submitted: November 3, 2010 Before KING and Circuit Judge. SHEDD, Circuit Decided: Judges, and December 7, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Jose Oseguera Rodriquez, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Oseguera Rodriquez appeals the district court s orders denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006) and denying his subsequent motion for reconsideration. For the reasons set forth below, we affirm. Our review of the record reveals that the district court mistakenly assumed that Oseguera Rodriquez was seeking relief under Amendment 706 to the U.S. Sentencing Guidelines Manual ( USSG ), which lowered the base offense levels for drug offenses involving cocaine base. USSG App. C, Amend. 706. In his § 3582(c) motion, however, Oseguera Rodriquez clearly sought the benefit of Amendment 709, which altered the computation of criminal history points for certain misdemeanors and petty offenses. Amendment 709, however, did not become effective until See USSG November 1, 2007, and does not apply retroactively. App. C, Amend. 709 (providing effective date); USSG § 1B1.10(c), p.s. (listing United States (noting that amendments v. an that apply Dunphy, 551 F.3d amendment to the retroactively); 247, see 249 n.2 (4th Guidelines may be also Cir.) applied retroactively only when the amendment is expressly listed in USSG § 1B1.10(c)), cert. denied, 129 S. Ct. 2401 (2009). 2 Because Oseguera Rodriquez is clearly not entitled to a reduction based on Amendment 709, we court s orders on this alternate ground. affirm the district 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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