                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-7790


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

WALTER DUANE WHITE,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:05-cr-00050-IMK-JES-6)



                               No. 09-2136


In Re:   WALTER DUANE WHITE,

                Petitioner.



   On Petition for Writ of Mandamus.         (1:05-cr-00050-IMK-JES)


Submitted:   April 7, 2010                     Decided:   April 29, 2010


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
No. 09-7790 affirmed; No. 09-2136 petition denied by unpublished
per curiam opinion.


Walter Duane White, Appellant Pro Se. Shawn Angus Morgan, Zelda
Elizabeth Wesley, Assistant United States Attorneys, Clarksburg,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

                  On   November    2,    2005,      Walter     White       pled    guilty   to

distribution           of     heroin    and     was      sentenced     to     100    months’

imprisonment.           On July 22, 2009, he filed a motion to “correct”

his    sentence         based     on    Amendment        709   to   the     United     States

Sentencing             Guidelines,            which        became          effective        on

November 1, 2007. *             On July 29, 2009, the district court denied

White’s motion on the grounds that Amendment 709 was not made

retroactively applicable; thus, it could not serve as a basis

for reducing his 2005 sentence.                          White appealed the district

court’s order.              He also filed a petition for mandamus requesting

that this court direct the district court to reduce his sentence

pursuant to Amendment 709.

                  This court reviews rulings on § 3582(c)(2) motions for

abuse of discretion.              United States v. Goines, 357 F.3d 469, 478

(4th Cir. 2004).              “A district court abuses its discretion if it

. . . bases its exercise of discretion on an erroneous factual

or legal premise.”              DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323

(4th       Cir.    2008)     (citing    James       v.   Jacobson,     6    F.3d    233,    239

(4th Cir. 1993)).               Under § 3582(c)(2), the district court may

modify the term of imprisonment “of a defendant who has been

       *
       Amendment 709 alters the computation of criminal history
points for multiple prior related sentences and certain
misdemeanors and petty offenses. See USSG App. C Amend. 709.



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sentenced      .        .    .        based    on     a    sentencing        range      that     has

subsequently been lowered,” if the amendment is listed in the

Guidelines         as       retroactively             applicable.            See     18     U.S.C.

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

              Here,         it    is    clear       that   Amendment       709    was    not    made

retroactively applicable.                      See USSG § 1B1.10(c), p.s. (2008);

see    also    United            States       v.    Dunphy,       551     F.3d   247,     249    n.2

(4th Cir.), cert. denied, 129 S. Ct. 2401 (2009); United States

v. McHan, 386 F.3d 620, 622 (4th Cir. 2004).                                 Accordingly, the

district court did not err in denying White’s § 3582 motion.

              As for White’s suggestion that he is entitled mandamus

relief, we note that it is a drastic remedy that is to be used

only in extraordinary circumstances.                            See, e.g., Kerr v. United

States Dist. Court, 426 U.S. 394, 402 (1976).                               The party seeking

mandamus relief carries the heavy burden of showing that he has

no other adequate means to attain the relief he desires and that

his    entitlement           to       such     relief      is     clear    and     indisputable.

United   States         v.       Moussaoui,         333    F.3d    509,     516-17      (4th    Cir.

2003).       Mandamus may not be used as a substitute for appeal.

See In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir.

2007).

              Here, White is clearly using mandamus as a substitute

for and/or supplement to his appeal.                            Moreover, White has failed

to    show    that      he       is    clearly       and   indisputably          entitled       to   a

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sentence reduction under § 3582.        As stated above, Amendment 709

was not made retroactively applicable.

           Accordingly, we affirm the district court’s judgment

in No. 09-7790, deny White’s petition for mandamus relief in No.

09-2136, and deny White’s motion for appointment of counsel.         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.



                                                  No. 09-7790 AFFIRMED
                                           No. 09-2136 PETITION DENIED




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