USA v. Troy Burton, No. 08-3300 (7th Cir. 2009)

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted June 23, 2009* Decided June 29, 2009 Before RICHARD D. CUDAHY, Circuit Judge RICHARD A. POSNER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-3300 UNITED STATES OF AMERICA, Plaintiff-Appellee, Appeal from the United States District Court for the Eastern District of Wisconsin. v. No. 04-CR-245 TROY S. BURTON, Defendant-Appellant. J.P. Stadtmueller, Judge. ORDER Troy Burton was sentenced as an Armed Career Criminal and is serving 180 months in prison, the statutory minimum, for possessing a firearm as a felon. See 18 U.S.C. §§ 922(g)(1), 924(e)(1). Burton moved to have his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2) because, he says, Amendment 709 to the sentencing guidelines entitles him to a * After examining the briefs and record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P. 34(a)(2). No. 08-3300 Page 2 lower sentence. See U.S.S.G. § 4A1.2(a)(2), Supp. to App. C 235 (2008) (Amendment 709). The district court denied the motion. Amendment 709 was not made retroactive by the Sentencing Commission and is not a ground for reduction under § 3582(c)(2). United States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009). More importantly, Amendment 709, which altered the rules for calculating criminal history under the Sentencing Guidelines, has no relevance to the determination whether a defendant qualifies as an Armed Career Criminal. See U.S.S.G. § 4B1.4 cmt. no. 1; United States v. Hobbs, 135 F.3d 384, 388 (4th Cir. 1998); United States v. Wright, 48 F.3d 254, 255-56 (7th Cir. 1995). Even if the amendment had been made retroactive, it could not have benefitted Burton. AFFIRMED.

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