                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6224


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TAVARRAS RHODES, a/k/a Tavarras Jerrell Rhodes,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     Robert E. Payne, Senior
District Judge. (3:08-cr-00082-REP-2; 3:11-cv-00109-REP)


Submitted:   June 20, 2013                 Decided:   June 25, 2013


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Dismissed in part and affirmed in part by unpublished per curiam
opinion.


Tavarras Rhodes, Appellant Pro Se. Richard Daniel Cooke, Angela
Mastandrea-Miller, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Tavarras Rhodes seeks to appeal the district court’s

orders denying         relief       on    his    28       U.S.C.A.       § 2255     (West   Supp.

2013)    motion      and        denying    his       18    U.S.C.       § 3582(c)(2)        (2006)

motion.       For the reasons that follow, we deny a certificate of

appealability and dismiss in part, and affirm in part.

              The    order        denying       § 2255      relief       is   not    appealable

unless    a    circuit          justice    or    judge       issues       a   certificate      of

appealability.         28 U.S.C. § 2253(c)(1)(B) (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).       When the district court denies relief on the merits, a

prisoner       satisfies           this     standard             by     demonstrating        that

reasonable      jurists           would     find          that    the      district     court’s

assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003).                            When the district court

denies     relief          on     procedural         grounds,           the   prisoner        must

demonstrate         both    that     the    dispositive               procedural     ruling    is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right.                     Slack, 529 U.S. at 484-85.

              We have independently reviewed the record and conclude

that Rhodes has not made the requisite showing.                               Accordingly, we



                                                 2
deny a certificate of appealability and dismiss the appeal from

the denial of § 2255 relief.

           Turning to the § 3582 order, the district court denied

relief based on the mistaken premise that Rhodes sought relief

under the Guidelines amendments pertaining to crack cocaine.                           In

fact,   Rhodes       sought    relief       based    on    Amendment      742,      which

eliminated    the     recency      enhancement       previously     found      in    U.S.

Sentencing    Guidelines       Manual     § 4A1.1(e).          Under   § 3582(c)(2),

the district court may modify the term of imprisonment “of a

defendant who has been sentenced based on a sentencing range

that has subsequently been lowered,” if the amendment is listed

in   the   Guidelines         as    retroactively         applicable.     18     U.S.C.

§ 3582(c)(2);        see   also      USSG        § 1B1.10(a)(2)(A),       (c),       p.s.

Amendment 742 is not among those listed in USSG § 1B1.10(c),

p.s., and therefore is not retroactively applicable.                       See United

States v. Dunphy, 551 F.3d 247, 249 n.2 (4th Cir. 2009).                               We

affirm the denial of § 3582 relief on this basis.

           Accordingly,        we    deny    a    certificate     of   appealability

and dismiss in part, and affirm in part.                       Rhodes’ request for

appointment     of    counsel       is   denied.          We   dispense    with      oral

argument because the facts and legal contentions are adequately




                                            3
presented in the materials before this court and argument would

not aid the decisional process.



                                             DISMISSED IN PART;
                                               AFFIRMED IN PART




                                  4
