                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             APRIL 15, 2009
                              No. 08-15778                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                 D. C. Docket No. 01-00036-CR-4-RH-WCS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

TONY GIBBS,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 15, 2009)

Before BIRCH, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Tony Gibbs, a federal prisoner convicted of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e), appeals the district court’s

denial of his pro se 18 U.S.C. § 3582(c)(2) motion to reduce sentence based on

Amendment 709 to the Sentencing Guidelines. After review, we AFFIRM.

                                I. BACKGROUND

      Gibbs filed the instant § 3582 motion in April 2008, arguing that under

Amendment 709, his two prior 1996 state convictions for delivery of cocaine

should not have been counted separately for purposes of determining either his

criminal history category under U.S.S.G. § 4A1.2 or whether he qualified as an

armed career criminal under 18 U.S.C. § 924(e). R1-154 at 4-5. The district court

found that Amendment 709 was not retroactively applicable and denied the motion

accordingly. R1-158 at 1-2. The court also noted that Gibbs was properly

classified as an armed career criminal under § 924(e) based on his 1996

convictions because the fact that the two offenses were committed on different

dates was sufficient to satisfy the standard for determining a predicate offense

under § 924(e). Id. at 3. Gibbs now appeals.

                                 II. DISCUSSION

      On appeal, Gibbs argues that Amendment 709 shows that his prior

convictions should have been counted as one single conviction for purposes of



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computing his criminal history category and determining whether he was eligible

for designation as an armed career criminal under 18 U.S.C. § 924(e) because: (1)

they were not separated by an intervening arrest; (2) they were for offenses named

in the same charging document; and (3) he was sentenced for both on the same

day. He argues additionally that the sentencing court violated Shepard v. United

States, 544 U.S. 13, 125 S. Ct. 1254 (2005) when it looked beyond the face of the

charging documents to determine whether the two convictions were separate.

      We review a district court’s decision to grant or deny a sentence reduction

for an abuse of discretion only. See United States v. James, 548 F.3d 983, 984 n.1

(11th Cir. 2008) (per curiam). The district court’s interpretation of the guidelines,

including the amendments thereto, is a purely legal issue that we review de novo.

See United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003).

      Section 3582(c)(2) grants district courts discretion to reduce a previously

imposed sentence “if such a reduction is consistent with the applicable policy

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

relevant policy statement on retroactive reduction of sentences provides that a

sentence reduction is not consistent with the policy statement, and therefore is not

authorized by § 3582(c)(2), unless: (1) the applicable guideline range was lowered

as a result of an amendment to the Guidelines; and (2) the amendment is listed as



                                           3
retroactively applicable under § 1B1.10(c). See U.S.S.G. § 1B1.10(a) (Nov. 2008);

United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003).

       Amendment 709 addresses the computation of criminal history scores under

U.S.S.G. § 4A1.1 in two areas: (1) the counting of multiple prior sentences as

single or separate sentences, and (2) the counting of certain misdemeanor or petty

offenses. See U.S.S.G. App. C, Amend. 709.1 Amendment 709 is not listed in

U.S.S.G. § 1B1.10(c) and was not made retroactively applicable by any later

amendment. See U.S.S.G. § 1B1.10(c); see generally U.S.S.G. App. C.

Accordingly, it cannot be the basis for a sentence reduction under § 3582(c). See

Armstrong, 347 F.3d at 909 (“[O]nly amendments, clarifying or not, listed under

subsection (c) of § 1B1.10, and that have the effect of lowering the sentencing

range upon which a sentence was based, may be considered for reduction of a

sentence under § 3582(c)(2).”).

       Gibbs’ remaining argument that the sentencing court erred in determining

that he qualified as an armed career criminal under § 924(e) is likewise unavailing

because § 3582(c) is not the proper vehicle for challenging an extraneous



       1
         Amendment 709 clarifies that prior sentences separated by an intervening arrest are to
be counted separately and that prior sentences that were not separated by an intervening arrest
are also to be counted separately “unless the sentences (1) were for offenses that were named in
the same charging document, or (2) were imposed on the same day.” U.S.S.G. App. C,
amend. 709, Reason for Amendment.

                                                4
sentencing issue such as this one. See United States v. Bravo, 203 F.3d 778, 781-

82 (11th Cir. 2000) (district court lacked jurisdiction to consider Eighth

Amendment claim when ruling on appellant’s motion for sentence reduction

because in § 3582(c) proceedings “all original sentencing determinations remain

unchanged with the sole exception of the guideline range that has been amended

since the original sentencing”). Gibbs must instead assert this collateral attack on

his sentence in a motion to vacate pursuant to 28 U.S.C. § 2255. See id. at 782.

                                III. CONCLUSION

      Gibbs appeals the district court’s denial of his motion for a reduction in

sentence. Because Amendment 709 is not retroactively applicable, it does not

entitle Gibbs to relief under § 3582(c)(2). Accordingly, the judgment of the district

court is AFFIRMED.




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