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

                                                                  FILED
                                                                December 1, 2008
                               No. 08-10325
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RUBEN OLVERA CONTRERAS, Sr.

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 6:98-CR-64-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Ruben Olvera Contreras, federal prisoner # 80905-079, appeals the district
court’s order denying Contreras’ motion to modify his sentence pursuant to 18
U.S.C. § 3582(c). Contreras pleaded guilty to conspiracy to import 100 kilograms
or more of marijuana into the United States and was sentenced to a term of
imprisonment of 235 months.
      Contreras argues that he is entitled to have his sentence reduced pursuant
to Amendment 709, which clarified which misdemeanor and petty offenses are

      *
      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should not be published and is not precedent except under the limited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. 08-10325

counted in determining the defendant’s criminal history points under U.S.S.G.
§ 4A1.2(c)(1). He argues that the application of the amendment would lower his
sentencing guidelines range and that the district court should reconsider his
advisory sentencing guidelines range in light of United States v. Booker, 543 U.S.
220 (2005), and the 18 U.S.C. § 3553(a) factors. Contreras contends that the
amendment should be applied retroactively pursuant to § 1B1.10(c). Although
Contreras acknowledges that amendments are to be applied retroactively only
if they are listed in § 1B1.10(c), he does not address the determination of the
district court that Amendment 709 is not a listed amendment. Id. at 9.
      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. § 3582(c)(2). Section
3582(c)(2) applies only to retroactive guidelines amendments, as set forth in the
guidelines policy statement. See § 1B1.10(a); United States v. Shaw, 30 F.3d 26,
28-29 (5th Cir. 1994). The Sentencing Commission has stated in § 1B1.10(a)
that 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), the district court
correctly denied Contreras’s motion.
      Insofar as Contreras argues that he is entitled to a reduction of his
sentence because Amendment 709 is a clarifying amendment, this court has held
that, except on direct appeal, a clarifying amendment is not retroactively applied
unless the amendment is listed in § 1B1.10(c). See United States v. Drath, 89
F.3d 216, 217-18 (5th Cir. 1996).




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                              No. 08-10325

     Because the district court did not abuse its discretion in denying the
motion, the denial of the motion is AFFIRMED.




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