                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                            December 12, 2008
                             TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                               Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                    No. 08-3161
 v.                                                 (D. Kansas)
 TYRONE D. TYNER,                        (D.C. No. 2:06-20043-06-JWL-6)

             Defendant-Appellant.



                        ORDER AND JUDGMENT *


Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit
Judges.



      After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist in

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

      Tyrone D. Tyner appeals the district court’s refusal to reduce his

ten-year sentence for his drug conspiracy conviction. He argues that the



      *
       This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
district court failed to rely on certain amendments to the Sentencing

Guidelines that would have resulted in a reduced sentence. He also argues

that once the district court applied the amendments correctly, it should also

have reevaluated his sentence under United States v. Booker, 543 U.S. 220

(2005). Reviewing de novo, we affirm Mr. Tyner’s sentence.

                             I. BACKGROUND

      Mr. Tyner pleaded guilty to one count each of (1) conspiracy to

possess with intent to distribute fifty grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 846 & 841(a)(1); (2) distribution of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C); and

(3) possession of a firearm by an unlawful user of a controlled substance, in

violation of 18 U.S.C. § 922(g)(3). The presentence report calculated Mr.

Tyner’s adjusted offense level to be 29, with a criminal history category of

IV, resulting in a sentencing guidelines range of 121 to 151 months. Mr.

Tyner was subject to a minimum mandatory sentence of 120 months

pursuant to 21 U.S.C. § 841(b)(1)(A), and on June 18, 2007, the district

court sentenced Mr. Tyner to 120 months’ imprisonment, followed by five

years’ supervised release.

      After the entry of his conviction and his sentence, Mr. Tyner filed in

the district court a pro se Motion to Reduce Sentences Pursuant to 18 U.S.C.

§ 3582(c)(2) to Modify Term of Imprisonment and a Memorandum in

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support thereof. Mr. Tyner contended that the district court should have

reduced his sentence under USSG Amendments 591, 599, and 709. 1

      In its Memorandum and Order addressing the motion to reduce the

sentence, as to Amendments 591 and 599, the district court agreed with Mr.

Tyner that USSG § 1B.10(c) explicitly lists these as amendments that a

court should apply retroactively. Rec. doc. 288, at 2 (Mem. and Order, filed

June 2, 2008). However, the district court noted that these two amendments

became effective on November 1, 2000, and thus were already in effect and

considered by the district court when it sentenced Mr. Tyner. As to

Amendment 709, the district court concluded this amendment was not listed

in USSG § 1B1.10(c) and was not, therefore, retroactive, such that it did not

authorize modification under § 3582(c)(2). As a result, the district court

denied the motion. Mr. Tyner now appeals.




      1
       Undoubtedly contributing to Mr. Tyner’s confusion, the
Government’s response to Mr. Tyner’s pro se motion focused exclusively on
Amendment 706, which concerns “crack” cocaine, and makes no reference
to any argument Mr. Tyner actually raised concerning Amendments 591,
599, and 709. Rec. doc. 279 (Govt’s Response to Defendant’s Motion to
Reduce Sentence) (“The defendant’s motion should be denied for the simple
reason that his case did not involve cocaine base (‘crack’), and he was not
sentenced pursuant to the portions of Section 2D1.1 altered by Amendment
706.”). See Rec. doc. 280 (Defendant’s pro se reply styled as a “Motion to
Traverse”) (“The government’s argument is flawed, and has no basis in this
proceeding regarding defendant [who] was convicted [for the controlled
substance] methamphetamine and not “crack” cocaine base.”).

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                              II. DISCUSSION

      “We review de novo the district court’s interpretation of a statute or

the sentencing guidelines.” United States v. Smart, 129 F.3d 539, 540 (10th

Cir. 1997) (quotation marks and citation omitted). When a “motion for

sentence reduction is not a direct appeal or a collateral attack under 28

U.S.C. § 2255, the viability of [the] motion depends entirely on 18 U.S.C. §

3582(c).” Id. (quotation marks, citation, and alteration omitted). Section

3582(c) allows the court to modify a sentence in only three limited

circumstances, including: 1) on motion of the Director of the Bureau of

Prisons if special circumstances exist; 2) if otherwise expressly permitted

by statute or Federal Rule of Criminal Procedure 35; or 3) if the sentencing

range is subsequently lowered by the Sentencing Commission. Id. at

540-41. Mr. Tyner’s motion is premised on the last circumstance: a

reduction of the sentencing range applicable to him. We construe liberally

pleadings filed by pro se litigants. Haines v. Kerner, 404 U.S. 519, 520

(1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      Section 3582(c)(2) of U.S.C. Title 18 provides as follows:

      (2) in the case of a defendant who has been sentenced to a term of
      imprisonment based on a sentencing range that has subsequently
      been lowered by the Sentencing Commission pursuant to 28
      U.S.C.§ 994(o), upon motion of the defendant or the Director of
      the Bureau of Prisons, or on its own motion, the court may reduce
      the term of imprisonment, after considering the factors set forth in
      section 3553(a) to the extent that they are applicable, if such a

                                      -4-
      reduction is consistent with applicable policy statements issued by
      the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis supplied).

      Pursuant to the Sentencing Commission’s policy statement on

retroactive reduction of sentences:

      In a case in which a defendant is serving a term of imprisonment,
      and the guideline range applicable to that defendant has
      subsequently been lowered as a result of an amendment to the
      Guidelines Manual listed in subsection (c) below, the court may
      reduce the defendant’s term of imprisonment as provided by 18
      U.S.C. § 3582(c)(2), and any such reduction in the defendant’s
      term of imprisonment shall be consistent with this policy
      statement.

U.S.S.G. § 1B1.10(a)(1) (emphasis supplied). Subsection (c) states:

      Covered Amendments.--Amendments covered by this policy
      statement are listed in Appendix C as follows: 126, 130, 156, 176,
      269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499,
      505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by 711,
      and 715.

      Here, the district court concluded Amendments 591 and 599 were

inapplicable because they had already taken effect and had been considered

by the court, and that Amendment 709, which concerns criminal history

calculations, was inapplicable because it was not made retroactive. See 18

U.S.C. § 3582(c)(2).

      We agree with the district court’s apt reasoning. Amendments 591 and

599 became effective on November 1, 2000, and were then part of the

guidelines that the district court considered when it sentenced Mr. Tyner.

                                      -5-
Thus, no reduction is applicable.

      Second, Amendment 709 is not listed in § 1B 1.10(c). Thus, it is not

retroactive and the district court did not have authority to reduce Mr.

Tyner’s sentence based upon an application of Amendment 709. Even if

Amendment 709, which became effective on November 1, 2007, applied

retroactively, however, Mr. Tyner’s sentence would not be reduced because

his advisory guideline sentencing range was based upon not his criminal

history category but a statutory-minimum sentence. See 21 U.S.C. §

841(b)(1)(A) (listing penalties for a violation of 21 U.S.C. § 841(a)(1) and

requiring “term of imprisonment [of] not . . . less than ten years”).

Accordingly, after a review of the record and the parties’ briefs, we affirm

the district court’s denial of Mr. Tyner’s § 3582(c)(2) motion.

                              III. CONCLUSION

      Accordingly, we AFFIRM Mr. Tyner’s sentence.


                                             Entered for the Court,


                                             Robert H. Henry
                                             Circuit Judge




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