USA v. Kenneth L. Rivers, No. 08-16968 (11th Cir. 2009)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 08-16968 Non-Argument Calendar ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 8, 2009 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 2 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. 3
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