UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. Ervin’s advisory Guidelines range of imprisonment
was calculated using the career offender guideline, U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2009). The
district court granted a three 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 sentence
reduction based on Amendment 750 to the Guidelines. 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, therefore,
Amendment 750 had no effect on his Guidelines range. Thus, the
district court denied Ervin’s § 3582(c)(2) motion. On appeal,
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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. The district court did not reduce Ervin’s
criminal history category and instead retained the criminal
history category that resulted from the application of the
career offender guideline. In addition, there is no support in
the substantial assistance motion filings or the district
court’s judgment to support Ervin’s conclusion. Because we do
not find that Ervin’s Guidelines range was based on USSG
§ 2D1.1(c), we cannot agree with Ervin’s contention that
Amendment 750 altered his Guidelines calculation.
Accordingly, we affirm the district court’s order. We
grant Ervin’s motion to amend. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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