UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8013
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDDIE MCLEAN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:02-cr-00037-BO-1; 5:07-cv-00119-BO)
Submitted: April 16, 2009 Decided: April 23, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William Gregory Duke, Greenville, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddie McLean seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
In this case, the district court granted a certificate
of appealability on the issue of whether McLean’s two prior
convictions for aggravated assault were properly treated as
separate offenses under U.S. Sentencing Guidelines Manual
§ 4A1.2(a) (2007), in light of Amendment 709 to the federal
sentencing guidelines that revised this provision after McLean’s
sentencing. Because Amendment 709 was not made retroactive, see
USSG § 1B1.10(c), and the assaults were properly treated as
2
separate offenses under the prior guideline in effect at the
time of sentencing, we affirm the district court’s denial of
relief on this claim.
As to McLean’s remaining claims, we have independently
reviewed the record and conclude that he has not made the
requisite showing for a certificate of appealability.
Accordingly, we deny a certificate of appealability and dismiss
the appeal as to these claims. We grant McLean’s motion for
counsel to withdraw, in which counsel acquiesces. 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 IN PART;
DISMISSED IN PART
3