                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                         SEPTEMBER 23, 2009
                               No. 08-16309               THOMAS K. KAHN
                           Non-Argument Calendar              CLERK
                         ________________________

                  D. C. Docket No. 98-08092-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ARISTOTLE SAMPSON,
a.k.a. Arin Taylor,
a.k.a. Derrick Thomas,

                                                         Defendant-Appellant.


                         ________________________

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

                            (September 23, 2009)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Aristotle Sampson, a pro se federal prisoner, convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), appeals the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based

on Amendment 709, which clarified when multiple convictions should be counted

separately for purposes of the criminal history score. Sampson raises two issues on

appeal. First, he argues the district court clearly erred in construing his

§ 3582(c)(2) motion as a request for relief pursuant to U.S.S.G. § 2D1.1, rather

than U.S.S.G. § 4A1.2, and that this error was compounded by its failure to

provide him notice and an opportunity to withdraw his § 3582(c)(2) motion,

pursuant to Castro v. United States, 124 S. Ct. 786 (2003). Second, Sampson

argues the district court clearly erred and abused its discretion in failing to grant

his § 3582(c)(2) motion pursuant to Amendment 709, the application of which, he

contends, would have reduced the calculation of his criminal history score and

precluded him from qualifying as an armed career criminal.

      We review a district court’s resolution of a motion under 18 U.S.C.

§ 3582(c)(2) for abuse of discretion and issues of legal interpretation de novo.

United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003); United States v.

Pringle, 350 F.3d 1172, 1178-79 (11th Cir. 2003). We have held on direct appeal

that an error a court committed at sentencing was harmless and remand was



                                            2
unnecessary where the defendant received the lowest possible term of

imprisonment. See United States v. Hernandez, 160 F.3d 661, 670-71 (11th Cir.

1998) (holding that an error in applying an upward departure from a criminal

history category I to category II was harmless where a correct calculation of the

defendant’s criminal history score would have placed him in criminal history

category II); see also Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.”).

      First, Sampson’s claim that the district court violated Castro is without

merit, as Castro sets forth notice requirements preliminary to a district court’s

recharacterization of a pro se litigant’s motion as a first 28 U.S.C. § 2255 motion.

See Castro, 124 S. Ct. at 792. Because the district court did not recharacterize

Sampson’s § 3582(c)(2) motion as a § 2255 motion, it was not required to comply

with Castro’s notice requirements.

      Second, while the district court appears to have denied relief under

§ 3582(c)(2) because the Sentencing Commission had not lowered the guideline

imprisonment range applicable to a career offender sentenced pursuant to U.S.S.G.

§ 4B1.1, and assumed erroneously that Sampson was convicted of a drug offense,

any error was harmless error, as discussed below. See Hernandez, 160 F.3d at 670;

Fed. R. Crim. P. 52(a). Thus remand is unnecessary.



                                           3
         As noted above, while a district court’s decision to grant or deny a sentence

reduction pursuant to § 3582(c)(2) is reviewed for abuse of discretion, where the

issue presented involves a legal interpretation, review is de novo. Brown, 332 F.3d

at 1343; Pringle, 350 F.3d at 1178. A district court may modify a term of

imprisonment in the case of a defendant who was sentenced based on a sentencing

range that subsequently has been lowered by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). The amendment to the Guidelines must be retroactively

applicable, however, and only amendments listed in U.S.S.G. § 1B1.10(c) qualify

as retroactively applicable amendments warranting § 3582(c)(2) relief. U.S.S.G.

§ 1B1.10(a)(1), (c); United States v. Armstrong, 347 F.3d 905, 907-08 (11th Cir.

2003).

         Amendment 709 is not listed in § 1B1.10(c), and, therefore, it is not a

retroactively applicable amendment that may be the basis for § 3582(c)(2) relief.

See U.S.S.G. § 1B1.10(c) (listing the retroactively applicable amendments, which

does not include Amendment 709). Because Amendment 709 is not retroactively

applicable, it cannot be a basis for Sampson’s § 3582(c)(2) motion, and, therefore,

the district court properly denied Sampson’s § 3582(c)(2) motion. See U.S.S.G.

§ 1B1.10(a)(1), (c); Armstrong, 347 F.3d at 907-08. Moreover, to the extent that

Sampson challenges the district court’s original determination at sentencing that he



                                            4
qualified as an armed career criminal, we have held that “a sentencing adjustment

undertaken pursuant to Section 3582(c)(2) does not constitute a de novo

resentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000).

      Based on our review of the record and consideration of the parties’ briefs,

we affirm the district court’s denial of Sampson’s § 3582(c)(2) motion.

      AFFIRMED.




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