                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-8505


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JAMES COURY HOLMES,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:00-cr-00107-HMH-1)


Submitted:    September 18, 2009          Decided:   September 30, 2009


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Coury Holmes, Appellant Pro Se.  Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James Coury Holmes appeals from the district court’s

order denying his motion for reduction of sentence, 18 U.S.C.

§ 3582(c) (2006).       Holmes’ motion was based on Amendment 709 to

the Sentencing Guidelines, see USSG App. C, Supp., Amend. 709

(revising     USSG    § 4A1.2(a)(2)).       Although    the   district   court

erroneously construed Holmes’ motion as one seeking relief under

Amendment 706, we find the error harmless because Amendment 709

does not apply retroactively and therefore would not authorize a

reduction in Holmes’ sentence.              See USSG § 1B1.10(c); United

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

that an amendment to the Guidelines may be applied retroactively

only   when     the     amendment   is      expressly     listed    in   USSG

§ 1B1.10(c)).        Accordingly, we affirm.       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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