                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-7016


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE OSEGUERA RODRIQUEZ, a/k/a Jose Oseguera,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:01-cr-00104-FDW-5)


Submitted:   November 3, 2010              Decided:   December 7, 2010


Before KING and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jose Oseguera Rodriquez, 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Unpublished opinions are not binding precedent in this circuit.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:

            Jose Oseguera Rodriquez appeals the district court’s

orders denying his motion for a reduction of sentence pursuant

to 18 U.S.C. § 3582(c) (2006) and denying his subsequent motion

for    reconsideration.        For    the      reasons     set    forth    below,      we

affirm.

            Our review of the record reveals that the district

court    mistakenly      assumed    that    Oseguera     Rodriquez        was    seeking

relief under Amendment 706 to the U.S. Sentencing Guidelines

Manual (“USSG”), which lowered the base offense levels for drug

offenses involving cocaine base.               USSG App. C, Amend. 706.                In

his § 3582(c) motion, however, Oseguera Rodriquez clearly sought

the benefit of Amendment 709, which altered the computation of

criminal    history      points     for    certain     misdemeanors        and       petty

offenses.

            Amendment 709, however, did not become effective until

November 1, 2007, and does not apply retroactively.                             See USSG

App. C, Amend. 709 (providing effective date); USSG § 1B1.10(c),

p.s.    (listing   amendments       that    apply    retroactively);           see    also

United    States    v.    Dunphy,    551    F.3d    247,    249    n.2    (4th       Cir.)

(noting    that    an    amendment    to    the    Guidelines      may    be     applied

retroactively only when the amendment is expressly listed in

USSG § 1B1.10(c)), cert. denied, 129 S. Ct. 2401 (2009).



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           Because Oseguera Rodriquez is clearly not entitled to

a   reduction   based   on   Amendment   709,   we    affirm   the   district

court’s orders on this alternate ground.             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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