In re: David W. LANIER, Movant, 41 F. App'x 820

ORDER David W. Lanier appeals a district court order denying his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a). In 1992, Lanier was convicted of multiple civil rights violations under 18 U.S.C. § 242. He was sentenced to twenty-five years of imprisonment.

Lanier originally filed with the district court a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) and then supplemented his request by contending that his conviction was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied the motion for a reduction in sentence, and noted that it was without jurisdiction to address the Apprendi issue since the argument was essentially a second motion to vacate under 28 U.S.C. § 2255. Lanier then attempted to file a notice of appeal with the district court.

However, the district court refused to accept his notice of appeal for filing. Lanier then sought permission from this court to file a notice of appeal. In his documents filed with this court, Lanier asserts that he did not file his motion under § 2255. Rather, the motion and subsequent appeal are based under § 3582(c)(2). As Lanier contends that his appeal is under § 3582(c)(2), rather than § 2255, we accept Lanier’s position and will address the merits of his appeal under § 3582(c)(2). This court reviews for an abuse of discretion a district court’s decision denying a motion to modify sentence. United States v.

Cothran, 106 F.3d 1560, 1562 (11th Cir.1997); United States v. Townsend, 55 F.3d 168, 170 (5th Cir.1995). Upon review, we conclude that the district court properly denied Lanier’s § 3582(

c) motion. Lanier argues that his sentence should be reduced in accordance with USSG App. C. Amendment 591, November 1, 2000. However, Amendment 591 does not apply to Lanier’s ease as explained in great detail by the district court in its order. Accordingly, we hereby affirm the district court’s order for the reasons stated by the district court. Rule 34(j)(2)(C), Rules of the Sixth Circuit.