                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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