          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 April 30, 2009
                                No. 08-50434
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

NICHOLAS KLIFFMUELLER

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 1:06-CR-1-ALL


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      Nicholas Kliffmueller, federal prisoner # 57735-180, appeals the district
court’s denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his 66-
month sentence imposed following his guilty plea conviction for conspiracy to
possess with intent to distribute methamphetamine.
      Pursuant to § 3582(c)(2), a defendant may have his sentence modified if
he was sentenced to a term of imprisonment based upon a sentencing range that



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-50434

subsequently was lowered by the Sentencing Commission. The district court
may grant a reduction if consistent with the applicable policy statements issued
by the Sentencing Commission. § 3582(c)(2); United States v. Gonzalez-Balderas,
105 F.3d 981, 982 (5th Cir. 1997). Section 3582(c)(2) applies only to retroactive
guidelines amendments, as set forth in the guidelines policy statement. See U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 1B1.10(a); United States v. Shaw, 30
F.3d 26, 28-29 (5th Cir. 1994).
      Kliffmueller contends that he is entitled to have his sentence reduced in
light of Amendment 709 to the Sentencing Guidelines.            He argues that
Amendment 709 modified U.S.S.G. § 4A1.2, and, thus, that he is entitled to have
his criminal history score recalculated.
      Unless an amendment is listed in U.S.S.G. § 1B1.10(c), a reduction based
on the amendment under § 3582(c) is not consistent with the policy statement
of U.S.S.G. § 1B1.10. See U.S.S.G. § 1B1.10 cmt. n.1(A). Amendment 709 is not
listed as an amendment covered by the policy statement in U.S.S.G. § 1B1.10(c).
See U.S.S.G. § 1B1.10(c) (May 2008). Therefore, under the plain language of
§ 3582(c), a district court is not authorized to reduce a sentence based on
Amendment 709 because that would be inconsistent with Sentencing
Commission policy. See U.S.S.G. § 1B1.10 cmt. n.1(A). Insofar as Kliffmueller
contends that Amendment 709 is a clarifying amendment that should be applied
retroactively even though it is not listed in U.S.S.G. § 1B1.10(c), this court has
held that, except on direct appeal, a clarifying amendment is not retroactively
applied unless the amendment is listed in U.S.S.G. § 1B1.10(c). See United
States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).
      Kliffmueller argues for the first time on appeal that he was eligible for
relief under the version of U.S.S.G. § 4A1.2(c)(1) that was in effect at the time
of his sentencing. He also argues that the district court did not correctly assess
the 18 U.S.C. § 3553(a) factors in imposing his original sentence and that it



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                                  No. 08-50434

incorrectly calculated his criminal history. He contends that his counsel failed
to raise the issue, and the district court did not consider this pertinent factor.
      Kliffmueller did not raise these claims in the district court. Thus, plain
error review governs these newly raised issues. See United States v. Mares, 402
F.3d 511, 520 (5th Cir. 2005).     Kliffmueller cannot rely on § 3582(c) as a
procedural vehicle to obtain a recalculation of his sentencing guidelines range
or a redetermination of the reasonableness of his initial sentence in this instance
because he is not relying on a retroactively applicable amendment to the
Guidelines in making this argument. See U.S.S.G. § 1B1.10(a); Shaw, 30 F.3d
at 28-29.
      Kliffmueller has not demonstrated that he has any evidence that he could
present at an evidentiary hearing to show that he is entitled to relief under
§ 3582(c)(2). His request for an evidentiary hearing is DENIED.
      In view of the foregoing, the district court did not abuse its discretion or
plainly err in denying Kliffmueller’s § 3582(c) motion. See Shaw, 30 F.3d at 28;
United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct.
962 (2009). The judgment of the district court is AFFIRMED.




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