United States v. Kenneth L. Rivers , 335 F. App'x 5 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16968 ELEVENTH CIRCUIT
JUNE 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 91-00598-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH L. RIVERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 8, 2009)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
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. § 1B1.10(c). See
U.S.S.G. § 1B1.10(c).
Here, Rivers was not eligible for a § 3582(c)(2) sentence reduction based on
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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
§ 1B1.10(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.
AFFIRMED.
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