UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7981
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDDIE JONES, JR.,
Defendant - Appellant.
No. 04-7992
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TORRANCE JONES,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-96-79-02-BO; CA-00-42-5-BO; CR-96-79)
Submitted: June 17, 2005 Decided: July 29, 2005
Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Freddie Jones, Jr., Torrance Jones, Appellants Pro Se. Rudolf A.
Renfer, Jr., Assistant United States Attorney, Christine Blaise
Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated cases, Freddie and Torrance Jones
appeal the district court’s dismissal of their motions for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2000),
asserting that they are entitled to reductions based on Amendment
591 to the U.S. Sentencing Guidelines. The district court, at the
urging of the Government, construed the motions as motions to
vacate pursuant to 28 U.S.C. § 2255 (2000). As Freddie and
Torrance have each filed a previous § 2255 motion, the court
dismissed the current motions as unauthorized successive § 2255
motions. Freddie and Torrance have appealed.
We conclude that the district court erred in construing
the 18 U.S.C. § 3582(c)(2) motions as § 2255 motions. A motion
under § 3582(c)(2) is a post-conviction remedy for an improperly
computed sentence that is separate and distinct from a § 2255
motion. United States v. Goines, 357 F.3d 469, 476 (4th Cir.
2004). However, we conclude that these motions fail on their
merits. We review the denial of a motion to modify sentence for
abuse of discretion. United States v. Turner, 59 F.3d 481, 483
(4th Cir. 1995). The sentencing court may reduce a defendant’s
term of imprisonment if his sentence was based on a guideline range
subsequently lowered by the Sentencing Commission, 18 U.S.C.
§ 3582(c)(2), and the amendment is listed in USSG § 1B1.10(c) as
retroactive. USSG § 1B1.10(a), p.s. (2004).
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Amendment 591 is one of the listed amendments that
applies retroactively. USSG § 1B1.10(c). Amendment 591 requires
the sentencing court to apply the offense guideline referenced in
the Statutory Index in Appendix A for the statute of conviction.
USSG App. C, Amend. 591. The amendment clarified USSG §§ 1B1.1 and
1B1.2, which some circuits had interpreted as permitting a court to
use an offender’s actual conduct in selecting the offense
guideline, even if that conduct was not charged in the indictment.
See United States v. Rivera, 293 F.3d 584, 586-87 (2d Cir. 2002).
We find that the district court acted in accordance with
USSG §§ 1B1.1 and 1B1.2 at sentencing when it consulted the
Statutory Index and referred to USSG § 2D1.1 as the proper
guideline for the Joneses’ convictions under 21 U.S.C.A. §§ 841,
846 (West 1999 & Supp. 2005). See USSG, App. A. The Joneses argue
that their guideline ranges were improperly based on quantities and
types of drugs determined by the sentencing court, resulting in a
base offense level higher than the offense level supported by the
facts alleged in the indictment or found by the jury. However,
Amendment 591 does not impact how the base offense level is
calculated within the appropriate guideline. Instead, Amendment
591 affects which guideline will be used in determining the base
offense level.
Therefore, the claims lack merit and entitle the Joneses
to no relief. Accordingly, we affirm the district court’s denial
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of their § 3582(c)(2) motions. 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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