                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-7702


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARCEL BARNES, a/k/a Larry Kevin Brown,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:94-cr-00052-RBS-3)


Submitted:   June 9, 2010                  Decided:   July 19, 2010


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marcel Barnes, Appellant     Pro Se.       Laura Marie Everhart,
Assistant United States      Attorney,    Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Marcel     Barnes      appeals     the    district     court’s       order

denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction

of sentence.          We affirm.

               Under § 3582(c)(2), the district court may reduce the

term    of    imprisonment      “of    a   defendant     who    has   been   sentenced

. . . based on a sentencing range that has subsequently been

lowered . . . if such a reduction is consistent with applicable

policy       statements    issued     by   the    Sentencing     Commission.”         18

U.S.C. § 3582(c)(2); see also U.S. Sentencing Commission Manual

§     1B1.10,    p.s.     (2009).          Further,      “[a]   reduction      in    the

defendant’s term of imprisonment is not consistent with this

policy statement and therefore is not authorized under . . .

§ 3582(c)(2) if . . . an amendment listed in subsection (c) does

not    have     the    effect   of     lowering    the    defendant’s        applicable

guideline range.”          USSG § 1B1.10(a)(2)(B), p.s.

               A defendant may obtain relief under § 3582(c)(2) only

if an amendment to the sentencing guidelines has lowered the

defendant’s advisory guidelines range.                   Barnes was therefore not

entitled to relief under § 3582(c)(2) based on his claims that

his criminal history points were incorrectly tallied and that

his sentence violated the rules of Gall v. United States, 552

U.S. 38 (2007), United States v. Booker, 543 U.S. 220 (2005),

Apprendi v. New Jersey, 530 U.S. 466 (2000), and other cases.

                                            2
          Barnes       maintained   that     under    Amendment    709    of    the

Guidelines, a misdemeanor conviction for assault on a female,

for which he received one criminal history point, would now not

be counted, placing him in a lower criminal history category.

Amendment 709, which addressed in part whether and when certain

misdemeanor    and   petty   offenses      are   included    in   the    criminal

history   score,     does    not    apply     retroactively.            See    USSG

§ 1B1.10(c),    p.s.      Therefore,       Barnes    was   not   entitled      to   a

reduction based on Amendment 709.

          We accordingly affirm.            We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                         AFFIRMED




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