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

                                                 FILED
                                                                           August 17, 2009
                                     No. 08-20759
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HARRISON BENNETT, JR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2706
                             USDC No. 4:05-CR-449-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Harrison Bennett, Jr., federal prisoner # 56140-179, appeals the denial of
his motion for reduction of sentence, which the district court construed as arising
under 18 U.S.C. § 3582. Bennett was convicted following his guilty plea of one
count of making a false statement in connection with an attempt to acquire a
firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). The district court
sentenced Bennett to 77 months of imprisonment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20759

      In calculating Bennett’s guidelines range of imprisonment under the
United States Sentencing Guidelines, the district court attributed one criminal
history point to Bennett on the basis of a conviction for illegal dumping, for
which Bennett was sentenced to eight days of imprisonment. See U.S.S.G.
§ 4A1.2(c)(1) (2005). Bennett now seeks to obtain the benefit of a November 1,
2007, amendment to § 4A1.2(c)(1). U.S.S.G. supp. to app. C, amend. 709 (2008).
Amendment 709 states that certain misdemeanors or petty offenses are counted
for criminal history purposes only if the court imposed a sentence longer than
one year of probation or at least thirty days of imprisonment. Id. Bennett
contends that, under United States v. Huff, 370 F.3d 454, 465-66 (5th Cir. 2004),
district courts may apply clarifying guidelines amendments retroactively. He
argues that the Sentencing Commission intended with Amendment 709 to clarify
§ 4A1.2(c)(1) and to reduce overly harsh sentences rather than to substantively
amend the guideline. Therefore, he asserts that the district court should have
resentenced him without including the criminal history point for illegal
dumping. He avers that, without that additional point, his criminal history
category and his sentencing range would have been lower, resulting in a lower
sentence. Bennett also asserts that, since he was sentenced originally, he has
been diagnosed with prostate cancer, and that the district court would have
considered a downward departure had it known of his diagnosis.
      Because the district court construed Bennett’s motion as arising under
§ 3582, Bennett does not need authorization to appeal the district court’s denial
of relief. See 28 U.S.C. § 2253. His motion for a certificate of appealability,
therefore, is DENIED as unnecessary.
      Although § 3582 permits modification of an imposed term of imprisonment
if the applicable sentencing range has been subsequently lowered by the
Sentencing Commission, it does so only “if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). The policy statement of U.S.S.G. § 1B1.10 states that a reduction

                                       2
                                  No. 08-20759

to a defendant’s term of imprisonment is authorized when an amendment to the
Guidelines lowers the applicable guidelines range, but only when the
amendment is listed in subsection (c) of the policy statement.           U.S.S.G.
§ 1B1.10(a)(1) (2008).    Section 1B1.10(c) does not list Amendment 709 as
authorizing the reduction of a defendant’s term of imprisonment under § 3582.
This court has held that, except on direct appeal, an amendment, even if
clarifying a guideline, is not retroactively applied unless the amendment is listed
in § 1B1.10(c). United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).
      In light of Drath, Bennett has failed to show that the district court abused
its discretion in denying him relief under § 3582. See United States v. Doublin,
572 F.3d 235, 237 (5th Cir. 2009).       The judgment of the district court is
AFFIRMED.




                                        3
