US v. Derrick Mabry


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00275-D-1,5:15-cv-00578-D Copies to all parties and the district court/agency. [999990776]. Mailed to: Derrick Mabry. [16-6925]

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Appeal: 16-6925 Doc: 9 Filed: 12/20/2016 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6925 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DERRICK DONNELL MABRY, a/k/a Mayberry, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:12-cr-00275-D-1; 5:15-cv-00578-D) Submitted: December 8, 2016 Before NIEMEYER Circuit Judge. and KING, Decided: Circuit Judges, December 20, 2016 and DAVIS, Senior Dismissed in part; affirmed in part by unpublished per curiam opinion. Derrick Donnell Mabry, Appellant Pro Se. Eric David Goulian, Seth Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Patrick Benton Weede, Special Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-6925 Doc: 9 Filed: 12/20/2016 Pg: 2 of 3 PER CURIAM: Derrick Donnell Mabry seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion and his 18 U.S.C. § 3582(c)(2) (2012) motion. After a review of the record, we dismiss in part and affirm in part. Regarding his § 2255 motion, this portion of the order is not appealable unless a circuit certificate of appealability. A certificate of justice or judge issues a 28 U.S.C. § 2253(c)(1)(B) (2012). appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). relief on the demonstrating district merits, that court’s debatable or a When the district court denies prisoner reasonable assessment wrong. Slack satisfies jurists this would of the v. McDaniel, standard find U.S. that the claims constitutional 529 by is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states claim of the denial of a constitutional right. a debatable Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Mabry has not made the requisite showing. 2 Accordingly, we deny Appeal: 16-6925 Doc: 9 Filed: 12/20/2016 Pg: 3 of 3 a certificate of appealability and dismiss the appeal of the denial of Mabry’s § 2255 motion. Turning to Mabry’s § 3582(c)(2) motion, we conclude that the district court did not abuse its discretion in denying the motion. Accordingly, we affirm for the reasons stated by the district court. (E.D.N.C. June United States v. Mabry, No. 5:12-cr-00275-D-1 28, 2016). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 3

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