                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                        FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                   AUG 4, 2006
                                 No. 05-10510                    THOMAS K. KAHN
                             Non-Argument Calendar                   CLERK
                           ________________________

                       D. C. Docket No. 92-06138-CR-WJZ

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                       versus

ELVIN IRIZZARY,

                                                            Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                  (August 4, 2006)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

      Elvin Irizzary appeals the district court's denial of his motion for

modification of his sentence, pursuant to 18 U.S.C. § 3582(c)(2). Irizzary argues
that the district court erred in denying his motion to modify his sentence because

Amendments 598 and 599, which altered the language of Application Notes 1 and

2 to U.S.S.G. § 2K2.4, are retroactive and show that he was double-punished for

the discharge of a firearm while committing a robbery and kidnapping.

      We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. United States v. Vautier, 144

F.3d 756, 759 n.3 (11th Cir. 1998). We review de novo a double-counting claim.

United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir. 1999).

      Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the

term of imprisonment of an already incarcerated defendant when the defendant’s

sentence was based upon a sentencing range that has been subsequently lowered by

the United States Sentencing Commission. United States v. Bravo, 203 F.3d 778,

780 (11th Cir. 2000). Before granting a sentence modification, however, a district

court must consider the factors set forth in § 3553(a) to the extent that they are

applicable, and evaluate whether such a reduction is “consistent with the applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

Thus, the law permits, but does not require, a district court to resentence a

defendant under § 3582(c)(2). United States v. Brown, 104 F.3d 1254, 1255 (11th

Cir. 1997). Moreover, only amendments listed in § 1B1.10(c) may be applied



                                           2
retroactively through a 3582(c)(2) motion. United States v. Pelaez, 196 F.3d 1203,

1205 n.3 (11th Cir. 1999).

      Amendment 598 is not listed in § 1B1.10(c). See U.S.S.G. § 1B1.10(c). It

thus may not be applied retroactively. Therefore, the district court correctly

refused to apply Amendement 598 to Irizzary.

      Amendment 599 may be applied retroactively. U.S.S.G. § 1B1.10(c) (Nov.

2000). Amendment 599 affects the commentary to U.S.S.G. § 2K2.4 and provides

that if a sentence under this guideline (i.e., a 60-month mandatory sentence as

required by 18 U.S.C § 924(c) for use of a firearm) is imposed in conjunction with

a sentence for an underlying offense, the sentencing court may not apply any

specific offense characteristic for possession, brandishing, use, or discharge of an

explosive or firearm when determining the sentence for the underlying offense.

See U.S.S.G. App. C, amend. 599 (Nov. 2000). Amendment 599 further provides

that a sentence under § 2K2.4 accounts for any explosive or weapon enhancement

for the underlying offense of conviction, including any such enhancement that

would apply based on conduct for which the defendant is accountable as relevant

conduct. Id.

      At the time Irizzary was sentenced in 1992, Amendment 489 had just

changed application note 2 to § 2K2.4 to the version that appeared in the



                                          3
sentencing guidelines prior to Amendment 599. See U.S.S.G. App. C, amend. 489

(Nov. 1993). Amendment 489 eliminated the subtraction formula from the

previous version of the guidelines, and allowed the district court to upwardly

depart to the maximum of the guideline range that would have resulted had there

been no conviction under § 924(c). U.S.S.G. § 2K2.4, comment. (n.2).

      In 1993, Application Note 2 provided as follows:

      Where a sentence under this section is imposed in conjunction with a
      sentence for an underlying offense, any specific offense characteristic
      for the possession, use, or discharge of an explosive or firearm (e.g.,
      § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the
      guideline for the underlying offense.

      In a few cases, the offense level for the underlying offense determined
      under the preceding paragraph may result in a guideline range that,
      when combined with the mandatory consecutive sentence under 18
      U.S.C. § 844(h), § 924(c), or § 929(a), produces a total maximum
      penalty that is less than the maximum of the guideline range that
      would have resulted had there not been a count of conviction under 18
      U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range that
      would have resulted if the enhancement for possession, use, or
      discharge of a firearm had been applied). In such a case, an upward
      departure may be warranted so that the conviction under 18 U.S.C.
      § 844(h), § 924(c), or § 929(a) does not result in a decrease in total
      punishment. An upward departure under this paragraph shall not
      exceed the maximum guideline range that would have resulted had
      there not been a count of conviction under 18 U.S.C. § 844(h),
      § 924(c), or § 929(a).

 U.S.S.G. § 2K2.4, comment. (n.2) (Nov. 1993). In 2000, Application Note 2
stated:

      If a sentence under this guideline is imposed in conjunction with a

                                          4
      sentence for an underlying offense, do not apply any specific offense
      characteristic for possession, brandishing, use, or discharge of an
      explosive or firearm when determining the sentence for the underlying
      offense. A sentence under this guideline accounts for any explosive
      or weapon enhancement for the underlying offense of conviction,
      including any such enhancement that would apply based on conduct
      for which the defendant is accountable under § 1B1.3 (Relevant
      Conduct). Do not apply any weapon enhancement in the guideline for
      the underlying offense, for example, if (A) a co-defendant, as part of
      the jointly undertaken criminal activity, possessed a firearm different
      from the one for which the defendant was convicted under 18 U.S.C.
      § 924(c). However, if a defendant is convicted of two armed bank
      robberies, but is convicted under 18 U.S.C. § 924(c) in connection
      with only one of the robberies, a weapon enhancement would apply to
      the bank robbery which was not the basis of the 18 U.S.C. § 924(c)
      conviction.

      [. . .]

      In a few cases, the offense level for the underlying offense determined
      under the preceding paragraphs may result in a guideline range that,
      when combined with the mandatory consecutive sentence under 18
      U.S.C. § 844(h), § 924(c) or § 929(a), produces a total maximum
      penalty that is less than the maximum of the guideline range that
      would have resulted had there not been a count of conviction under 18
      U.S.C. § 844(h), § 924(c) or § 929(a) (i.e., the guideline range that
      would have resulted if the enhancements for possession, use, or
      discharge of a firearm had been applied). In such a case, an upward
      departure may be warranted so that the conviction under 18 U.S.C.
      § 844(h), § 924(c) or § 929(a) does not result in a decrease in the total
      punishment. An upward departure under this paragraph shall not
      exceed the maximum of the guideline range that would have resulted
      had there not been a count of conviction under 18 U.S.C. § 844(h),
      § 924(c) or § 929(a).

U.S.S.G. § 2K2.4, comment. (n.2) (Nov. 2000). In 2002, Amendment 642

redesignated Application Note 2 as Application Note 4. U.S.S.G. App. C, amend.

                                          5
642 (Nov. 2002).

      The purpose of Amendment 599 is merely “to clarify under what

circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) in

conjunction with convictions for other offenses may receive weapon enhancements

contained in the guidelines for those other offenses.” U.S.S.G. App. C, amend.

599 (Nov. 2000), “Reason for Amendment.” Irizzary did not receive a weapons

enhancement to his offense level; rather, the district court departed upward as

suggested in application note 2. The final paragraph of application note 2 was not

changed by Amendment 599. Thus, after Amendment 599, district courts are still

permitted to depart upward to the maximum guideline range that would have

resulted had there been no conviction under 18 U.S.C. § 924(c). U.S.S.G. § 2K2.4,

comment. (n.2) (Nov. 2000). Because Irizzary received an upward departure, and

not a weapons enhancement, Amendment 599 does not apply to his sentence.

      Irizzary’s sentence was enhanced pursuant to an upward departure based on

Amendment 489. Amendment 599 does not affect these changes to the guidelines

made by Amendment 489. Thus, Amendment 599 does not apply to Irizzary. The

district court did not err in refusing to apply this Amendment.

      The judgment of the district court is


                                          6
       AFFIRMED.1




       1
         Irizzary’s other arguments on appeal are rejected without need for further discussion.
Irizzary’s request for oral argument is denied.

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