                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                May 1, 2006
                              No. 05-13571                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D. C. Docket No. 92-00377-CR-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

DARRYL MCCRARY,

                                                          Defendant-Appellant.


                        ________________________

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

                               (May 1, 2006)

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     On September 29, 2005, this Court denied Darryl McCrary’s motion for
leave to proceed on appeal in forma pauperis because his appeal was frivolous.

After his mother paid the filing fees, McCrary is now proceeding with that

frivolous appeal. He contends that the district court erred in denying his motion to

correct his 228-month sentence, brought pursuant to 18 U.S.C. § 3582(c)(2) based

upon Amendments 9 and 599 to the United States Sentencing Guidelines.

      We review a district court’s decision not to resentence a defendant under

§ 3582(c)(2) for abuse of discretion. United States v. Vautier, 144 F.3d 756, 759

n.3 (11th Cir. 1998). Pursuant to § 3582(c)(2), a district court may reduce the

prison term of a defendant who is sentenced within a guideline range that has

subsequently been lowered through a retroactive amendment to the guidelines “if

such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see United States v. Pringle,

350 F.3d 1172, 1176 (11th Cir. 2003). U.S.S.G. § 1B1.10(c) lists all of the

retroactive amendments.

      Amendment 9 has been in effect since June 15, 1988. U.S.S.G. App. C,

Amend. 9 (2004). It was in effect in 1992 when McCrary committed his crimes

and in 1995 when the district court sentenced him. Because McCrary could not

have been sentenced within a guideline range that was subsequently lowered

through the adoption of Amendment 9, he is not entitled to § 3582(c)(2) relief on



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this basis. Thus, the district court did not abuse its discretion in denying

McCrary’s motion to correct his sentence based upon Amendment 9.

      Amendment 599 became effective on November 1, 2000, and thus was not

in effect when McCrary committed his crimes and was sentenced. U.S.S.G. App.

C, Amend. 599. The amendment is listed in § 1B1.10(c) as having retroactive

application. U.S.S.G. § 1B1.10(c). Amendment 599 expanded the commentary in

U.S.S.G. § 2K2.4 to clarify under what circumstances a firearms enhancement may

be imposed when a defendant has been convicted of a firearms offense under 18

U.S.C. § 924(c). U.S.S.G., App. C, Amend. 599, Reason for Amendment. The

amendment states that:

      [N]o guideline weapon enhancement should be applied when
      determining the sentence for the crime of violence or drug trafficking
      offense underlying the 18 U.S.C. § 924(c) conviction, nor for any
      conduct with respect to that offense for which the defendant is
      accountable under § 1B1.3 (Relevant Conduct). Guideline weapon
      enhancements may be applied, however, when determining the
      sentence for counts of conviction outside the scope of relevant
      conduct for the underlying offense (e.g., a conviction for a second
      armed bank robbery for which no 18 U.S.C. § 924(c) conviction was
      obtained).

Id. This Court has stated that the purpose of the amendment was “to prevent

‘double counting’ for firearms use in any one criminal event.” Pringle, 350 F.3d at

1180 (emphasis omitted). Because McCrary received weapons enhancements only

in connection with the robberies for which he was not charged and convicted of

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violating § 924, his guideline range would not be affected by the amendment.

Accordingly, the district court did not abuse its discretion in denying McCrary’s

motion to correct his sentence based upon Amendment 599.

      AFFIRMED.




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