                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-7981




UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


FREDDIE JONES, JR.,

                                            Defendant - Appellant.



                             No. 04-7992



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


TORRANCE JONES,

                                            Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.      Terrence W. Boyle,
District Judge. (CR-96-79-02-BO; CA-00-42-5-BO; CR-96-79)


Submitted:   June 17, 2005                 Decided:   July 29, 2005
Before NIEMEYER, LUTTIG, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Freddie Jones, Jr., Torrance Jones, Appellants Pro Se. Rudolf A.
Renfer, Jr., Assistant United States Attorney, Christine Blaise
Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            In these consolidated cases, Freddie and Torrance Jones

appeal    the   district   court’s     dismissal   of   their   motions   for

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2000),

asserting that they are entitled to reductions based on Amendment

591 to the U.S. Sentencing Guidelines.        The district court, at the

urging of the Government, construed the motions as motions to

vacate pursuant to 28 U.S.C. § 2255 (2000).                As Freddie and

Torrance have each filed a previous § 2255 motion, the court

dismissed the current motions as unauthorized successive § 2255

motions.    Freddie and Torrance have appealed.

            We conclude that the district court erred in construing

the 18 U.S.C. § 3582(c)(2) motions as § 2255 motions.              A motion

under § 3582(c)(2) is a post-conviction remedy for an improperly

computed sentence that is separate and distinct from a § 2255

motion.    United States v. Goines, 357 F.3d 469, 476 (4th Cir.

2004).     However, we conclude that these motions fail on their

merits.    We review the denial of a motion to modify sentence for

abuse of discretion.       United States v. Turner, 59 F.3d 481, 483

(4th Cir. 1995).      The sentencing court may reduce a defendant’s

term of imprisonment if his sentence was based on a guideline range

subsequently    lowered    by   the   Sentencing   Commission,    18   U.S.C.

§ 3582(c)(2), and the amendment is listed in USSG § 1B1.10(c) as

retroactive.     USSG § 1B1.10(a), p.s. (2004).


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            Amendment 591 is one of the listed amendments that

applies retroactively.      USSG § 1B1.10(c).          Amendment 591 requires

the sentencing court to apply the offense guideline referenced in

the Statutory Index in Appendix A for the statute of conviction.

USSG App. C, Amend. 591.     The amendment clarified USSG §§ 1B1.1 and

1B1.2, which some circuits had interpreted as permitting a court to

use   an   offender’s     actual   conduct    in   selecting        the    offense

guideline, even if that conduct was not charged in the indictment.

See United States v. Rivera, 293 F.3d 584, 586-87 (2d Cir. 2002).

            We find that the district court acted in accordance with

USSG §§ 1B1.1 and 1B1.2 at sentencing when it consulted the

Statutory   Index   and    referred   to    USSG   §   2D1.1   as    the    proper

guideline for the Joneses’ convictions under 21 U.S.C.A. §§ 841,

846 (West 1999 & Supp. 2005).      See USSG, App. A.        The Joneses argue

that their guideline ranges were improperly based on quantities and

types of drugs determined by the sentencing court, resulting in a

base offense level higher than the offense level supported by the

facts alleged in the indictment or found by the jury.                     However,

Amendment 591 does not impact how the base offense level is

calculated within the appropriate guideline.              Instead, Amendment

591 affects which guideline will be used in determining the base

offense level.

            Therefore, the claims lack merit and entitle the Joneses

to no relief.    Accordingly, we affirm the district court’s denial


                                    - 4 -
of their § 3582(c)(2) motions.    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




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