                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-8013


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

EDDIE MCLEAN,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (5:02-cr-00037-BO-1; 5:07-cv-00119-BO)


Submitted:    April 16, 2009                 Decided:   April 23, 2009


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


William Gregory Duke, Greenville, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Eddie        McLean    seeks       to        appeal      the     district        court’s

order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008)

motion.      The order is not appealable unless a circuit justice or

judge       issues     a     certificate         of        appealability.                 28     U.S.C.

§ 2253(c)(1) (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).        A

prisoner       satisfies           this       standard            by     demonstrating              that

reasonable      jurists          would     find        that       any     assessment           of     the

constitutional         claims       by    the    district           court      is       debatable      or

wrong and that any dispositive procedural ruling by the district

court is likewise debatable.                      Miller-El v. Cockrell, 537 U.S.

322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).

              In this case, the district court granted a certificate

of   appealability          on    the    issue        of    whether       McLean’s         two      prior

convictions      for        aggravated        assault        were        properly        treated       as

separate       offenses          under     U.S.        Sentencing            Guidelines          Manual

§ 4A1.2(a)      (2007),       in    light       of    Amendment          709       to    the   federal

sentencing guidelines that revised this provision after McLean’s

sentencing.          Because Amendment 709 was not made retroactive, see

USSG    §    1B1.10(c),       and    the      assaults        were       properly         treated     as


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separate offenses under the prior guideline in effect at the

time of sentencing, we affirm the district court’s denial of

relief on this claim.

            As to McLean’s remaining claims, we have independently

reviewed    the   record   and   conclude   that   he   has    not    made   the

requisite     showing      for    a    certificate      of    appealability.

Accordingly, we deny a certificate of appealability and dismiss

the appeal as to these claims.             We grant McLean’s motion for

counsel to withdraw, in which counsel acquiesces.                   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 IN PART;
                                                         DISMISSED IN PART




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