                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 September 17, 2009
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-3152
 v.                                                       (D. Kansas)
 ABELEE BRONSON,                              (D.C. No. 2:88-CR-20075-1-JWL)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Senior 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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Abelee Bronson was convicted in the district of

Kansas of armed bank robbery and was sentenced to 262 months’ imprisonment,

to run consecutively to a 262-month sentence he received in the western district


      *
        This order and judgment is not binding precedent except under the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.
of Missouri for a prior armed bank robbery. In reliance on Amendment 709 to the

career offender provisions of the United States Sentencing Commission,

Guidelines Manual (“USSG”), which took effect on November 1, 2007, long after

Mr. Bronson’s sentencing proceeding, Mr. Bronson moved pursuant to 18 U.S.C.

§ 3582(c)(2) to modify his sentence for the Kansas robbery. In particular,

Mr. Bronson sought to have the two armed robbery convictions counted as one for

the purpose of determining whether he is a career offender, which would, he

claims, have the practical effect of having his sentences run concurrently, rather

than consecutively. 1

      The district court denied Mr. Bronson’s motion, on the ground that

Amendment 709 was not retroactive and did not provide Mr. Bronson any relief.

This appeal followed, in which we affirm the district court.




      1
        As the commentary concerning Amendment 709 makes clear, the
amendment “simplifies the rules for counting multiple prior sentences. . . . Under
the amendment, the initial inquiry will be whether the prior sentences were for
offenses that were separated by an intervening arrest. . . . If so, they are to be
considered separate sentences, counted separately, and no further inquiry is
required.” USSG, Supp. to App. C, Amend. 709 at 238. Mr. Bronson argues that
both robberies should be counted as one for the purpose of determining whether
he is a career offender because there was no intervening arrest between the two.
We need not address this issue, as we explain, infra, that Amendment 709 does
not apply retroactively to Mr. Bronson’s sentence.

                                         -2-
                                 BACKGROUND

      As indicated, Mr. Bronson relies on Amendment 709 to the Sentencing

Guidelines to argue that his 262-month sentences should have been imposed

concurrently, rather than consecutively. He actually filed three motions: a

motion under 18 U.S.C. § 3582(c)(2) to modify his sentence, which the district

court denied; a motion to reconsider that denial, which the district court also

denied; and an amended motion to reconsider. The district court denied this last

motion as well. All of Mr. Bronson’s motions were premised upon Amendment

709 to the Guidelines.

      Amendment 709 modified USSG §§ 4A1.1 and 4A1.2 of the Guidelines to

change the way certain prior convictions affect a defendant’s criminal history

category. The district court denied Mr. Bronson relief, on the ground that

Amendment 709 does not apply retroactively and therefore may not support a

§ 3582 reduction in sentence.



                                  DISCUSSION

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

sentencing guidelines.” United States v. Smartt, 129 F.3d 539, 540

10th Cir. 1997) (further quotation omitted). “We review for an abuse of

discretion a district court’s decision to deny a reduction in sentence under 18




                                         -3-
U.S.C. § 3582(c)(2).” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.

2008).

         Section 3582(c)(2) states that “[t]he court may not modify a term of

imprisonment once it has been imposed except . . . 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 . . . .” 18 U.S.C.

§ 3582(c)(2). That section further states that a court may only reduce a term of

imprisonment “if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” Id.

         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.

USSG § 1B1.10(a)(1) (emphasis added). Subsection (c) does not list Amendment

709 among the covered, retroactive amendments. See United States v. Peters, 524

F.3d 905, 907 (8th Cir.) (“Amendment 709 . . . is not a covered amendment under

§ 1B1.10 to which retroactive treatment may be given.”), cert. denied, 129 S. Ct.

290 (2008). Accordingly, the district court did not abuse its discretion in denying

Mr. Bronson’s § 3582 motion to reduce his sentence.

                                           -4-
      Finally, Mr. Bronson argues that the district court erred in not applying

Amendment 709 retroactively because the court has the authority, based on the

principles underlying United States v. Booker, 543 U.S. 220 (2005), “to modify

[his] sentence despite the Sentencing Commission’s failure to specifically

designate Amendment 709 for retroactive application.” Appellant’s Br. at 4. We

have rejected this argument. “Booker simply has no bearing on sentencing

modification proceedings conducted under § 3582(c)(2).” United States v.

Rhodes, 549 F.3d 833, 840 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).



                                 CONCLUSION

      For the foregoing reasons, the decision of the district court is AFFIRMED.

The sentence is AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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