US v. Tavarras Rhode

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying a certificate of appealability Originating case number: 3:08-cr-00082-REP-2,3:11-cv-00109-REP Copies to all parties and the district court/agency. [999137093]. Mailed to: Tavarras Rhodes. [13-6224]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6224

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAVARRAS RHODES, a/k/a Tavarras Jerrell Rhodes,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:08-cr-00082-REP-2; 3:11-cv-00109-REP)

Submitted:

June 20, 2013

Decided:

June 25, 2013

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam
opinion.

Tavarras Rhodes, Appellant Pro Se. Richard Daniel Cooke, Angela
Mastandrea-Miller, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tavarras Rhodes seeks to appeal the district court’s
orders denying
2013)

motion

motion.

relief
and

on

his

denying

28

his

U.S.C.A.

18

U.S.C.

§ 2255

(West

§ 3582(c)(2)

Supp.
(2006)

For the reasons that follow, we deny a certificate of

appealability and dismiss in part, and affirm in part.
The
unless

a

order

circuit

appealability.

denying

justice

§ 2255

or

relief

judge

is

issues

a

28 U.S.C. § 2253(c)(1)(B) (2006).

not

appealable

certificate

of

A certificate

of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

that

court’s

assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).
denies

relief

demonstrate

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
is

debatable, and that the motion states a debatable claim of the
denial of a constitutional right.

Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude
that Rhodes has not made the requisite showing.

2

Accordingly, we

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deny a certificate of appealability and dismiss the appeal from
the denial of § 2255 relief.
Turning to the § 3582 order, the district court denied
relief based on the mistaken premise that Rhodes sought relief
under the Guidelines amendments pertaining to crack cocaine.
fact,

Rhodes

sought

eliminated

the

Sentencing

relief

recency

Guidelines

based

enhancement

Manual

on

Amendment

previously

§ 4A1.1(e).

742,

found

Under

In

which

in

U.S.

§ 3582(c)(2),

the district court may modify the term of imprisonment “of a
defendant who has been sentenced based on a sentencing range
that has subsequently been lowered,” if the amendment is listed
in

the

Guidelines

§ 3582(c)(2);

see

as
also

retroactively
USSG

applicable.

§ 1B1.10(a)(2)(A),

18

U.S.C.

(c),

p.s.

Amendment 742 is not among those listed in USSG § 1B1.10(c),
p.s., and therefore is not retroactively applicable.

See United

States v. Dunphy, 551 F.3d 247, 249 n.2 (4th Cir. 2009).

We

affirm the denial of § 3582 relief on this basis.
Accordingly,

we

deny

a

certificate

of

appealability

and dismiss in part, and affirm in part.

Rhodes’ request for

appointment

dispense

of

counsel

is

denied.

We

with

oral

argument because the facts and legal contentions are adequately

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presented in the materials before this court and argument would
not aid the decisional process.

DISMISSED IN PART;
AFFIRMED IN PART

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