United States v. Holmes , 350 F. App'x 818 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8505
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES COURY HOLMES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:00-cr-00107-HMH-1)
Submitted: September 18, 2009 Decided: September 30, 2009
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Coury Holmes, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Coury Holmes appeals from the district court’s
order denying his motion for reduction of sentence, 18 U.S.C.
§ 3582(c) (2006). Holmes’ motion was based on Amendment 709 to
the Sentencing Guidelines, see USSG App. C, Supp., Amend. 709
(revising USSG § 4A1.2(a)(2)). Although the district court
erroneously construed Holmes’ motion as one seeking relief under
Amendment 706, we find the error harmless because Amendment 709
does not apply retroactively and therefore would not authorize a
reduction in Holmes’ sentence. See USSG § 1B1.10(c); United
States v. Dunphy, 551 F.3d 247, 249 n.2 (4th Cir. 2009) (noting
that an amendment to the Guidelines may be applied retroactively
only when the amendment is expressly listed in USSG
§ 1B1.10(c)). Accordingly, we 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
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