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

                                                FILED
                                                                June 16, 2009
                                No. 08-40399
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE MANUEL TAMEZ-PLATA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 2:02-CR-165-ALL


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jose Manuel Tamez-Plata, federal prisoner # 98862-079, who is serving a
sentence for a drug conviction, moves to proceed in forma pauperis (IFP) to
appeal the district court’s order denying his motion to modify his sentence
pursuant to 18 U.S.C. § 3582(c). The district court denied Tamez-Plata leave to
proceed IFP on appeal, certifying that the appeal was not taken in good faith.
By moving for leave to proceed IFP, Tamez-Plata is challenging the district



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-40399

court’s certification that his appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Tamez-Plata argues that he is entitled to have his sentence reduced
pursuant to Amendment 709, which clarified which misdemeanor and petty
offenses are counted in determining the defendant’s criminal history points
under U.S.S.G. § 4A1.2(c)(1). He argues that the application of the amendment
would lower his sentencing guidelines range and 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.
      We review a district court’s denial of a § 3582(c)(2) motion for abuse of
discretion. See United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).
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. 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); Drath, 89 F.3d at 218.         The
Sentencing Commission has stated in § 1B1.10(a) 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)(2), the district court correctly denied Tamez-Plata’s
motion. See Drath, 89 F.3d at 218.
      Insofar as Tamez-Plata argues that he is entitled to a reduction of his
sentence because Amendment 709 is a clarifying amendment, we have held that,
except on direct appeal, a clarifying amendment is not retroactively applied
unless the amendment is listed in § 1B1.10(c). See id. at 217-18.
      Tamez-Plata has not shown that the district court’s determination that his
appeal was not taken in good faith was incorrect. Accordingly, his request for

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                               No. 08-40399

IFP is DENIED, see Baugh, 117 F.3d at 202 n.24, and his appeal is DISMISSED.
See 5 TH C IR. R. 42.2.




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