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

                                                                 FILED
                                                                January 8, 2009
                               No. 08-10595
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

ISAAC RODRIGUEZ

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 5:04-CR-89-ALL


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Isaac Rodriguez, federal prisoner # 31752-177, pleaded guilty to being a
convicted felon in possession of a firearm, and was sentenced to 120 months in
prison. Rodriguez appeals the district court’s order denying his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence.
      Rodriguez argues that he is entitled to have his sentence reduced pursuant
to Amendment 709, which clarifies, among other things, whether multiple prior
offenses are to be counted separately or as a single sentence when calculating

      *
      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should not be published and is not precedent except under the limited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.
                                    No. 08-10595

criminal history points under U.S.S.G. § 4A1.2(c)(1). He asserts that the
application of this clarifying amendment would dramatically lower his
sentencing guidelines range and that the amendment should be applied
retroactively pursuant to § 1B1.10(c).
      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
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
§ 1B1.10(a); United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).
      The Sentencing Commission has stated in § 1B1.10 that unless an
amendment is listed in § 1B1.10(c), a reduction based on the amendment under
§ 3582(c) is not consistent with the policy statement of § 1B1.10. See § 1B1.10,
comment. (n.1(A)). Amendment 709 is not listed as an amendment covered by
the policy statement in § 1B1.10(c). See § 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 § 1B1.10, comment. (n.1(A)). Moreover,
insofar as Rodriguez argues that he is entitled to a reduction of his sentence
because Amendment 709 is a clarifying amendment, the court has held that,
except on direct appeal, a clarifying amendment is not retroactively applied
unless the amendment is listed in § 1B1.10(c). See United States v. Drath, 89
F.3d 216, 217-18 (5th Cir. 1996).
      The district court did not abuse its discretion in denying Rodriguez’s
motion after determining that Amendment 709 is not retroactive. United States
v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994). In any event, Rodriguez would not have
been entitled to a sentence reduction because the provision in Amendment 709

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that allows multiple offenses to be counted as a single sentence is not applicable
in cases, such as Rodriguez’s, where an intervening arrest occurred between
offenses. U.S.S.G., App. C Supp., Amend. 709. Accordingly, the judgment of the
district court is AFFIRMED.




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