                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-6316


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

T.B. MOSS, JR., a/k/a T.M. Moss, Jr.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:02-cr-00136-FDW-1)


Submitted:   June 17, 2010                       Decided:   June 28, 2010


Before MOTZ and    KING,     Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


T.B. Moss, Jr., Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             T.B.    Moss,   Jr.,      appeals           the   district       court’s    order

denying his 18 U.S.C. § 3582(c) (2006) motion based on Amendment

709 to the Sentencing Guidelines.                        We have reviewed the record

and   find   no     reversible      error.           Accordingly,         we    affirm    the

district court’s order, noting that Amendment 709 has not been

made retroactively applicable and therefore was not available

for   relief.       Amendment       709    did       not       become   effective       until

November 1, 2007, and does not apply retroactively.                                See USSG

§ 1B1.10(c)       (Amendment     709      is       not    listed);      see    also     United

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

an amendment to the Guidelines may be applied retroactively only

when the amendment is expressly listed in USSG § 1B1.10(c)),

cert. denied, 129 S. Ct. 2401 (2009).                           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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