     Case: 17-11362       Document: 00514537672         Page: 1     Date Filed: 07/02/2018




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


                                     No. 17-11362
                                                                                FILED
                                                                             July 2, 2018
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHRISTOPHER T. KING,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-103-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Christopher T. King, federal prisoner # 43317-177 and proceeding pro se,
challenges the denial of his 18 U.S.C. § 3582(c)(2) motion (as well as of his
motion to reconsider the denial) to reduce his sentence of 240 months’
imprisonment, imposed following his guilty-plea conviction for receipt of visual
depictions of minors engaging in sexually explicit conduct, in violation of 18




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 17-11362

U.S.C. § 2252(a)(2), (b)(1). King sought a modification of his sentence based on
Amendments 795 and 801 to the Sentencing Guidelines.
      King claims the district court erred in denying a sentence reduction
because it refused to consider his assertions regarding Amendment 795
(modifying “not counted as a single sentence” to “not treated as a single
sentence”) and because Amendment 801 (narrowing distribution to knowingly
engage in distribution) is a clarifying amendment that is retroactive. We
review for abuse of discretion both the decision whether to reduce a sentence
pursuant to § 3582(c)(2) and the decision to deny a motion for reconsideration
of such a denial. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009);
United States v. Rabhan, 540 F.3d 344, 346 (5th Cir. 2008). A district court’s
interpretation of the guidelines is reviewed de novo. Evans, 587 F.3d at 672.
      Section 3582(c)(2) permits the discretionary modification of defendant’s
sentence if he was sentenced to “a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission”.
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009) (quoting §
3582(c)(2)). Nonetheless, § 3582(c)(2) applies only to Guideline amendments
made retroactive by the Sentencing Commission. Dillon v. United States, 560
U.S. 817, 824–26 (2010).
      Guideline § 1B1.10(d) does not expressly list either Amendment as a
retroactive amendment for which a sentence reduction under § 3582(c)(2) may
be granted. Moreover, we have held that, except on direct appeal, a clarifying
amendment is not applied retroactively unless the amendment is expressly
listed as retroactive in the Guidelines. United States v. Drath, 89 F.3d 216,
217–18 (5th Cir. 1996) (referring to then applicable list of retroactive
amendments in Guideline § 1B1.10 (c)). King cannot demonstrate the court
erred by denying his § 3582(c)(2) motion after determining neither Amendment



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                                No. 17-11362

provides a basis for the motion or that it abused its discretion in denying his
motion to reconsider for the same reasons. Dillon, 560 U.S. at 826; Evans, 587
F.3d at 672; Drath, 89 F.3d at 217–18; U.S.S.G. § 1B1.10(d).
      AFFIRMED.




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