                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-14730         ELEVENTH CIRCUIT
                                                     APRIL 8, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                 D. C. Docket No. 04-00046-CR-BAE-4

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

MAURICE LAWRENCE WILLIAMS,

                                                        Defendant-Appellant.


                      ________________________

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

                             (April 8, 2010)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Maurice Lawrence Williams, proceeding pro se, appeals the district court's

denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. Williams’

motion was based on Amendment 709 to the Sentencing Guidelines, which is not a

retroactively applicable guideline amendment listed in U.S.S.G. § 1B1.10(c) and

therefore cannot serve as the basis for § 3582(c)(2) relief. Accordingly, we

AFFIRM.

                               I. BACKGROUND

      Maurice Lawrence Williams pled guilty to distribution of cocaine base, a

violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during a drug

trafficking crime, a violation of 18 U.S.C. § 924(c). R1-34. The presentence

investigation report determined that Williams’s total offense level was 17 and his

criminal history category was IV. The district court imposed a total sentence of

100 months: 40 months of imprisonment for the cocaine offense, followed by 60

months of imprisonment for the firearm offense. R1-35.

      Subsequently, Williams filed a motion for a sentence reduction pursuant to

18 U.S.C. § 3582(c)(2), contending that he was entitled to a sentence reduction in

light of recent amendments to the Sentencing Guidelines. R1-54. Specifically, his

motion was based on Amendments 706 and 709. Id. The court determined that

Williams’ amended offense level was 15 and that his criminal history category



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remained IV. R1-55. The court granted his motion and reduced his total sentence

to 97 months: 37 months of imprisonment for the cocaine offense, followed by

60 months of imprisonment for the firearm offense. Id. Williams appealed the

district court’s “denial of full relief.” R1-56.

      On appeal, we vacated Williams’s sentence because the district court did not

demonstrate that it had considered the 18 U.S.C. § 3553 sentencing factors. R1-62.

On remand, the district court imposed the same sentence and clarified that it did so

after considering the relevant factors. R1-61.

      Williams then filed the present § 3582(c)(2) motion, arguing that, in

resolving his earlier motion, the court erroneously failed to consider the effect of

Amendment 709. R1-63 at 2. He contended that Amendment 709, which concerns

counting offenses to determine a defendant’s criminal history score, is a clarifying

amendment that must be applied retroactively. Id. at 2-3. The district court denied

Williams’s motion, concluding that Amendment 709 is not retroactive. R1-66.

                                  II. DISCUSSION

      On appeal, Williams argues, pro se, that the district court abused its

authority by denying his 18 U.S.C. § 3582(c)(2) motion. He contends that the

court erroneously assigned him a criminal history category of IV, and that his true




                                            3
criminal history category was II. Accordingly, his guideline range was calculated

incorrectly, and his sentence is unjust.

      Williams’ pro se argument may be liberally construed as a contention that

the district court erred in concluding that Amendment 709 did not entitle him to a §

3582(c)(2) reduction. See Tannenbaum v. United States, 148 F.3d 1262, 1263

(11th Cir. 1998) (per curiam) (holding that pro se pleadings will be liberally

construed). We “review de novo a district court's conclusions about the scope of

its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008) (per curiam). Pursuant to 18 U.S.C. § 3582(c)(2), a

district court may modify a defendant’s sentence that was based on a sentencing

range that subsequently has been lowered by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with

applicable policy statements issued by the Sentencing Commission.” Id. The

applicable policy statement states that a sentence reduction is not authorized under

§ 3582(c)(2) unless an amendment listed in U.S.S.G. § 1B1.10(c) is applicable to

the defendant. U.S.S.G. § 1B1.10(a)(2)(A), p.s. (Nov. 2009). Amendment 709 is

not listed in U.S.S.G. § 1B1.10(c). See U.S.S.G. § 1B1.10(c), p.s.

      Where an amendment is not listed in § 1B1.10(c), it cannot serve as the basis

for a § 3582(c)(2) reduction. United States v. Armstrong, 347 F.3d 905, 909 (11th



                                           4
Cir. 2003) (holding that, although the amendment at issue was a “clarifying

amendment” and therefore applied retroactively in the context of direct appeals and

habeas petitions, it could not serve as the basis for a § 3582(c)(2) reduction

because it was not listed in § 1B1.10(c)).

                                III. CONCLUSION

      Here, the district court correctly concluded that Williams was not eligible for

a § 3582(c)(2) sentence reduction based on Amendment 709, because Amendment

709 is not a retroactively applicable guideline amendment listed in § 1B1.10(c).

Accordingly, we AFFIRM.




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