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

                                                 FILED
                                                                            June 2, 2009
                                     No. 08-50464
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

ROLAND SAMANIEGO

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:04-CR-340-1


Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Roland Samaniego, federal prisoner #43425-180, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute cocaine. Samaniego argues that he is entitled to have his sentence
reduced in light of Amendment 709 to the Sentencing Guidelines. He argues
that Amendment 709 modified U.S.S.G. §§ 4A1.1 and 4A1.2, and, thus he is
entitled to have his criminal history score recalculated.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-50464

      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. The district court
may grant a reduction if consistent with the applicable policy statements issued
by the Sentencing Commission. § 3582(c)(2); United States v. Gonzalez-Balderas,
105 F.3d 981, 982 (5th Cir. 1997). 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); United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).
      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), a district court does not
abuse its discretion by denying a reduction in a sentence based on Amendment
709. See § 1B1.10, comment. (n.1(A)). Samaniego has failed to show that the
district court erred in concluding that Amendment 709 did not apply
retroactively and could not be used to support a motion under § 3582(c).
      Samaniego concedes that the district court was correct in its determination
that he is not entitled to relief under Amendment 706 because he was convicted
for a powder cocaine offense and not a crack cocaine offense. See United States
v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). Thus, the district court did not
abuse its discretion in denying Samaniego’s § 3582(c) motion. See Shaw, 30 F.3d
at 28. Accordingly, the judgment of the district court is AFFIRMED.




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