                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-7077


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

EDWARD J. ROBINSON, a/k/a Jason,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (2:92-cr-00163-6)


Submitted:    October 7, 2009                 Decided:   October 26, 2009


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edward J. Robinson, Appellant Pro Se.    Laura Marie Everhart,
Assistant United   States  Attorney,  Norfolk,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Edward J. Robinson appeals the district court’s order

denying    his    motion      for    reduction      of    sentence      pursuant    to   18

U.S.C. § 3582(c) (2006).               For the reasons set forth below, we

affirm.

            Our review of the record reveals that the district

court mistakenly assumed that Robinson was seeking relief under

Amendment 706 of 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, Robinson clearly sought the benefit

of Amendment 591.

            Although Amendment 591 applies retroactively, see USSG

§ 1B1.10(c), it clearly does not apply to Robinson’s case.                               The

Amendment simply “requires that the initial selection of the

offense guideline be based only on the statute or offense of

conviction rather than on judicial findings of actual conduct

not made by the jury.”              United States v. Moreno, 421 F.3d 1217,

1219    (11th    Cir.     2005).       In    short,      “‘[t]he    plain     wording    of

Amendment       591   applies       only    to    the    choice    of   the     applicable

offense guideline, not to the subsequent selection of the base

offense level.’”          Poindexter v. United States, 556 F.3d 87, 89

(2d Cir. 2009) (quoting United States v. Rivera, 293 F.3d 584,

586 (2d Cir. 2002)).

                                              2
            We    find     that     the    district       court   correctly     selected

USSG   § 2D1.1      as    the     proper    offense       guideline    for   Robinson’s

convictions under 21 U.S.C. §§                    841(a), 846 (2006).           Although

Robinson    argues        that    his     base    offense    level     was   improperly

enhanced based on the district court’s determination of drug

quantity,     Amendment          591    “does      not     constrain     the     use    of

judicially found facts to select a base offense level within the

relevant guideline.”             Moreno, 421 F.3d at 1220.

            We    therefore        affirm    the    district      court’s      denial   of

Robinson’s       § 3582(c)        motion    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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