US v. Torrey Ervin, No. 13-6354 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6354 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TORREY TEDERIAL ERVIN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00070-MR-1) Submitted: June 27, 2013 Decided: July 16, 2013 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Torrey Tederial Ervin, 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 Unpublished opinions are not binding precedent in this circuit.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: Torrey Tederial Ervin appeals the district court s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We review a district court s ruling on a § 3582(c)(2) motion for an abuse of discretion. United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010). We affirm. In 2009, Ervin pled guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute cocaine base. was Ervin s advisory Guidelines range of imprisonment calculated Sentencing district using the Guidelines court career Manual granted a offender ( USSG ) three guideline, U.S. § 4B1.1 (2009). The offense level departure for substantial assistance to the Government. Ervin was sentenced to 188 months imprisonment, the bottom of the post-departure Guidelines range. Ervin s § 3582(c)(2) motion sought a reduction based on Amendment 750 to the Guidelines. sentence Amendment 750 revised the offense levels applicable to certain cocaine base quantities under USSG § 2D1.1(c). The district court found that Ervin s Guidelines range was calculated pursuant to the career offender guideline, USSG § 4B1.1 and, Amendment 750 had no effect on his Guidelines range. district court denied Ervin s § 3582(c)(2) motion. 2 therefore, Thus, the On appeal, Ervin contends that the extent of his substantial assistance departure demonstrates that his departure Guidelines range was based on USSG § 2D1.1(c). Specifically, he argues that the departure offense level matched the offense level he would have received in the absence of the career offender enhancement. In this case, we need not consider whether such an argument could ever provide relief, because Ervin has failed to demonstrate that the district court relied upon the cocaine base guidelines in calculating the extent of the departure. Ervin s substantial assistance departure was a flat reduction of three offense levels. criminal history history category The district category that substantial assistance did instead resulted career offender guideline. the and court from not reduce retained the application find that § 2D1.1(c), Ervin s we cannot criminal of the In addition, there is no support in motion filings or court s judgment to support Ervin s conclusion. not the Ervin s Guidelines agree with range district Because we do was Ervin s the based on USSG contention that Amendment 750 altered his Guidelines calculation. Accordingly, we affirm the district court s order. grant Ervin s motion to amend. We We dispense with oral argument because the facts and legal contentions are adequately presented 3 in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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