US v. Jackie McKubbin


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:95-cr-00005-FDW-3 Copies to all parties and the district court/agency. [998442347] [10-6827]

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US v. Jackie McKubbin Doc. 0 Case: 10-6827 Document: 7 Date Filed: 10/08/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6827 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JACKIE MCKUBBIN, a/k/a Jack, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:95-cr-00005-FDW-3). Submitted: September 30, 2010 Decided: October 8, 2010 Before NIEMEYER, AGEE, and KEENAN, Circuit Judges. Affirmed as modified by unpublished per curiam opinion. Jackie McKubbin, Appellant Pro Se. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 10-6827 Document: 7 Date Filed: 10/08/2010 Page: 2 PER CURIAM: Jackie order denying McKubbin motion appeals for from the of district sentence court's under 18 his reduction U.S.C. 3582(c) (2006) based on Amendment 591 of the United States Sentencing Guidelines Manual ("USSG"), effective November 1, 2000, and a subsequent order denying reconsideration. The district court reasoned that Amendment 591 was not retroactive. While this is incorrect, see USSG 1B1.10(c) (listing Amendment 591 among those to apply retroactively), a reduction of sentence is nonetheless not authorized for McKubbin because he pled guilty to and was convicted of a conspiracy to violate 18 U.S.C. 841, 860 (2006). Thus, his offense level was properly determined by reference to 18 U.S.C. 860. Accordingly, we affirm the district court's denial of McKubbin's motion for a sentence reduction, but we modify the district court's order denying reconsideration to note that the motion is denied because a reduction is not authorized for McKubbin's crime of conviction. 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 AS MODIFIED 2

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