Opinion
No. 08-16968 Non-Argument Calendar.
June 8, 2009.
Robert B. Cornell, Fort Lauderdale, FL, Anne R. Schultz, Laura Thomas Rivero, U.S. Attorney's Office, Miami, FL, for Plaintiff-Appellee.
Kenneth L. Rivers, Coleman, FL, pro se.
Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 91-00598-CR-SH.
Before BARKETT, WILSON and PRYOR, Circuit Judges.
Kenneth L. Rivers, proceeding pro se, appeals the district court's denial of his pro se motion for a sentence reduction, which he filed pursuant to 18 U.S.C. § 3582(c)(2). Rivers's motion was based on Amendment 709, which generally affected the calculation of a defendant's criminal history score. On appeal, Rivers argues that the district court erred in denying his § 3582(c)(2) motion because, as a clarifying amendment, Amendment 709 retroactively applied to reduce his guideline range.
"We review de novo a district court's conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2)." United States v. James, 548 F.3d 983, 984 (11th Cir. 2008). A district court may modify a term of imprisonment in the case of a defendant who was sentenced to a term of imprisonment based on a sentencing range that subsequently has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. The applicable policy statements, found in § 1B1.10, state that a sentence reduction is not authorized under § 3582(c)(2) if "none of the amendments listed in subsection (c) is applicable to the defendant. . . ." U.S.S.G. § 1B1.10(a)(2)(A). Amendment 709 is not listed in U.S.S.G. § lB1.10(c). See U.S.S.G. § 1B1.10(c).
Here, Rivers was not eligible for a § 3582(c)(2) sentence reduction based on Amendment 709 because Amendment 709 is not a retroactively applicable guideline amendment listed in § 1B1.10(c). See U.S.S.G. § 1B1.10(a)(2)(A); United States v. Armstrong, 347 F.3d 905, 907-08 (11th Cir. 2003) (holding that the district court did not err in determining that the defendant's sentence could not be reduced under § 3582(c)(2) when the amendment at issue was not listed in § lB1.10(c)). To the extent that Rivers argues that Amendment 709 applies retroactively because it is a clarifying amendment, his argument fails because we have held that, while consideration of a clarifying amendment "may be necessary in the direct appeal of a sentence or in a petition under [28 U.S.C] § 2255, it bears no relevance to determining retroactivity under § 3582(c)(2)." Armstrong, 347 F.3d at 908-09.