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

                                                 FILED
                                                                             May 8, 2009
                                     No. 08-40466
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

CHRISTOPHER RYAN WEIR,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:06-CR-209-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Christopher Ryan Weir, federal prisoner # 62315-179, appeals the district
court’s order denying his motion to modify his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). Weir pleaded guilty to being a felon in possession of a firearm and
was sentenced to a term of imprisonment of forty-six months.
       Weir argues that he is entitled to have his sentence reduced pursuant to
Amendment 709 to the Sentencing Guidelines, which clarified which
misdemeanor and petty offenses are counted in determining a defendant’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40466

criminal history points under U.S.S.G. § 4A1.2(c)(1). He also argues that the
district court should reconsider his advisory sentencing guidelines range in light
of United States v. Booker, 543 U.S. 220 (2005) and the 18 U.S.C. § 3553(a)
factors.
      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.                 18 U.S.C.
§ 3582(c)(2).    Section 3582(c)(2) applies only to retroactive guidelines
amendments, as set forth in the guidelines policy statement. See U.S.S.G.
§ 1B1.10(a); United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994). This court
reviews a district court’s refusal to lower a defendant’s sentence under
§ 3582(c)(2) for abuse of discretion. See Shaw, 30 F.3d at 29.
      The Sentencing Commission has stated in § 1B1.10(a)(2) that unless an
amendment is listed in § 1B1.10(c), a reduction based on the amendment under
§ 3582(c)(2) is not consistent with the policy statement of § 1B1.10. U.S.S.G.
§ 1B1.10(a)(2). Amendment 709 is not listed as an amendment covered by the
policy statement in § 1B1.10(c). See U.S.S.G. § 1B1.10(c). Therefore, under the
plain language of § 3582(c)(2), the district court correctly denied Weir’s motion.
      Insofar as Weir argues that he is entitled to a reduction of his sentence
because Amendment 709 is a clarifying amendment, this 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). Because the district court did not abuse its
discretion in denying the motion, the denial of the motion is AFFIRMED. Weir’s
motion for an evidentiary hearing and appointment of counsel for the purpose
of oral argument are DENIED.




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