Professional Documents
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No. 08-7726
3:97-184-5,
a/k/a
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:97-cr-00184-FDW-5)
Submitted:
Decided:
September 8, 2009
PER CURIAM:
Michelle
denial
of
his
Dwayne
18
Byers
U.S.C.
reduction in sentence.
appeals
3582(c)(2)
the
district
(2006)
courts
motion
for
contending
Byerss
that
May
13,
under
Amendment
706,
2009
release
from
prison
affirm
the
judgment
of
the
the
probation
officer
prepared
Prior to
presentence
after
adjustment
for
acceptance
of
responsibility
that
Byers
career
offender
under
USSG
adjustment
for
acceptance
of
responsibility.
Thus,
because
Byerss offense level under USSG 4B1.1 was not greater than
the offense level otherwise applicable, Byerss career offender
designation
4B1.1.
had
no
immediate
effect
on
his
sentence.
USSG
ten
years
later,
Byers
filed
3582(c)(2)
Amendment
motion.
706,
the
district
court
denied
Byerss
3582
See
United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004).
The
district
court
may
reduce
the
term
of
imprisonment
of
policy
statement
and
therefore
is
not
authorized
under
denying
Byerss
motion,
the
district
court
On appeal, Byers
were
pursuant
designation,
departure
Byerss
under
USSG
to
USSG
sentencing
5K1.1,
4B1.1s
range,
p.s.,
career
before
was
based
offender
the
on
downward
his
crack
leaving
all
other
guideline
decisions
unaffected
would
effect
at
Byers
is
the
time
correct
of
his
that,
had
sentencing,
Amendment
the
706
probation
been
in
officer
2D1.1(c)(3),
2D1.2(a)(2)
(2008),
which
would
have
history
category
of
VI,
would
have
yielded
USSG ch.
5,
pt.
(sentencing
table).
This,
however,
does
not
make
Byerss case.
Byers overlooks the fact that, as a result of this
lessened
crack
cocaine
offense
level
had
Amendment
706
been
which,
after
three-level
adjustment
for
months
calculated
Amendment
imprisonment,
by
706
the
the
same
probation
d[id]
not
as
the
officer.
have
the
range
originally
Therefore,
effect
of
because
lowering
the
we
deny
the
Governments
motion
to
argument
because
the
facts
and
legal
We dispense with
contentions
are
adequately
expressed
in
the
materials
before
the
court
and