     Case: 10-20475     Document: 00511600908         Page: 1     Date Filed: 09/13/2011




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

                                                                            FILED
                                                                        September 13, 2011
                                     No. 10-20475
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICHARD CRUZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:92-CR-184-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Richard Cruz, federal prisoner # 60692-079, appeals the denial of his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). He was
found guilty by a jury of being a felon in possession of a firearm and was
sentenced to 235 months in prison.
        Cruz contends that Amendment 709 to the sentencing guidelines applies
retroactively to his criminal history calculation because the amendment is a



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-20475    Document: 00511600908      Page: 2   Date Filed: 09/13/2011

                                  No. 10-20475

clarifying amendment. He asserts that as a result of the amendment, his
criminal history score should be recalculated.
      The decision whether to reduce a sentence under § 3582(c)(2) is
discretionary, so the denial of a § 3582(c) motion is reviewed for abuse of that
discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010). The district court is authorized to reduce a
sentence based on a sentencing range that subsequently was lowered by the
Sentencing Commission only if the amendment to the guidelines is listed in
U.S.S.G. § 1B1.10(c). See § 3582(c)(2); § 1B1.10(a)(1); § 1B1.10, comment.
(n.1(A)); United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997).
Amendment 709 is not listed in § 1B1.10(c), so the district court was not
authorized to reduce the sentence pursuant to § 3582(c)(2), and the denial of the
motion was not an abuse of discretion. See Evans, 587 F.3d at 672, 674.
      Cruz’s motion for the appointment of counsel is DENIED. There is no
right to appointed counsel in a § 3582(c)(2) proceeding.        United States v.
Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995). Moreover, because the district
court was not authorized to grant § 3582(c)(2) relief, the interest of justice does
not require appointment of counsel. Cf. United States v. Robinson, 542 F.3d
1045, 1052 (5th Cir. 2008) (finding that the interest of justice required the
appointment of counsel where appeal raised issues not previously resolved by
this court’s precedent).
      AFFIRMED; Motion DENIED.




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