UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALLACE ANTHONY GAITHER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:98-cr-00202-JAB-1)
Submitted: October 11, 2012 Decided: October 16, 2012
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wallace Anthony Gaither, Appellant Pro Se. Robert Michael
Hamilton, Angela Hewlett Miller, Assistant United States
Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wallace Anthony Gaither appeals the district court’s
order denying his self-styled “Motion to Alter or Amend
Sentence.” We affirm.
Gaither’s motion to alter or amend was filed following
the district court’s February 2011 denial of his 18 U.S.C.
§ 3582(c)(2) (2006) motion for sentence reduction based on
Amendments 706 and 711 to the Sentencing Guidelines (“the 2007
Amendments”) and February 2012 grant of his § 3582(c)(2) motion
for sentence reduction based on Amendment 750 to the Sentencing
Guidelines. In granting Gaither’s request for a sentence
reduction, the district court awarded him a reduction in his
offense level under Amendment 750 and reduced his sentence from
360 months’ imprisonment to 292 months’ imprisonment. Gaither
asserted in the motion to alter or amend that he was eligible
for an additional two-level reduction in his offense level under
the 2007 Amendments and that the court should further reduce his
sentence based on his post-sentencing conduct. *
*
On appeal, Gaither does not press his arguments for a
sentence reduction on the basis of his post-sentencing conduct
or assert that the district court erred in rejecting his request
for a sentence reduction on the basis of this conduct.
We therefore deem this issue forfeited. Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009).
2
In United States v. Goodwyn, 596 F.3d 233, 236
(4th Cir. 2010), this court held that 18 U.S.C. § 3582(c)(2)
divests a district court of jurisdiction to reduce a sentence,
except in those cases specifically authorized by statute. One
authorized exception occurs when the United States Sentencing
Commission retroactively lowers the applicable Guidelines range
for an offense. § 3582(c)(2). When that occurs, § 3582(c)(2)
provides a district court one opportunity to apply the
retroactively applicable Guidelines amendment and modify the
sentence. Goodwyn, 596 F.3d at 236; see United States v. Redd,
630 F.3d 649, 651 (7th Cir. 2011) (“Neither the text of
§ 3582(c)(2) nor the language of Amendment 712 suggests that
prisoners are entitled to more than one opportunity to request a
lower sentence, for any given change in the Guideline range.”).
Here, the district court determined in February 2011
that Gaither was not entitled to a sentence reduction under the
2007 Amendments because they did not have the effect of lowering
his Guidelines range, and Gaither was not entitled to an
additional sentence reduction under those Guidelines. Further,
insofar as Gaither sought reconsideration of the merits of the
February 2011 ruling, the merits of the February 2012 ruling, or
both, the district court lacked jurisdiction to hear the motion.
Goodwyn, 596 F.3d at 235-36.
3
We therefore affirm the judgment of the district
court. 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
4