US v. Marcus Franklin

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:05-cr-00192-REP-1. Copies to all parties and the district court/agency. [998474190] [10-6144]

US v. Marcus Franklin

Doc. 0

Case: 10-6144 Document: 9

Date Filed: 11/30/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6144 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. MARCUS FRANKLIN, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:05-cr-00192-REP-1) Submitted: November 8, 2010 Decided: November 30, 2010

Before MOTZ, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Amy Leigh Austin, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Sara Elizabeth Chase, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

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Case: 10-6144 Document: 9

Date Filed: 11/30/2010

Page: 2

PER CURIAM: Marcus denying his Franklin for appeals the of district court's 18 order U.S.C.

motion

reduction

sentence,

§ 3582(c) (2006).

Our review of the record discloses that the

gun and drug counts were grouped for purposes of determining Franklin's advisory Guidelines range. Amendment 706 of the sentencing Although application of would reduce the

guidelines

offense level for the drug count, the Amendment does not apply to the gun count. "[T]he offense level applicable to a Group is

the offense level . . . for the [more] serious of the counts comprising the Group, i.e., the [higher] offense level of the counts in the Group." U.S. Sentencing Guidelines Manual

§ 3D1.3(a) (2008).

Because the offense level for the firearm

count is greater than the offense level (as reduced by Amendment 706) for the drug count, the offense level for the group is that of the gun count. would not have the Accordingly, application of Amendment 706 effect of lowering Franklin's advisory We its We legal

Guidelines range. therefore discretion dispense hold in with

See USSG § 1B1.10, comment. (n.1(A)). the district court did and not we facts abuse

that denying oral

Franklin's argument

motion,

affirm. and

because

the

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2