                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 08-16968                 ELEVENTH CIRCUIT
                                                                 JUNE 8, 2009
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                       D. C. Docket No. 91-00598-CR-SH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

KENNETH L. RIVERS,

                                                             Defendant-Appellant.


                          ________________________

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

                                  (June 8, 2009)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Kenneth L. Rivers, proceeding pro se, appeals the district court’s denial of
his pro se motion for a sentence reduction, which he filed pursuant to 18 U.S.C.

§ 3582(c)(2). Rivers’s motion was based on Amendment 709, which generally

affected the calculation of a defendant’s criminal history score. On appeal, Rivers

argues that the district court erred in denying his § 3582(c)(2) motion because, as a

clarifying amendment, Amendment 709 retroactively applied to reduce his

guideline range.

      “We review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). A district court may modify a term of imprisonment in

the case of a defendant who was sentenced to a term of imprisonment based on a

sentencing range that subsequently has been lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be

“consistent with applicable policy statements issued by the Sentencing

Commission.” Id. The applicable policy statements, found in § 1B1.10, state that

a sentence reduction is not authorized under § 3582(c)(2) if “none of the

amendments listed in subsection (c) is applicable to the defendant . . . .” U.S.S.G.

§ 1B1.10(a)(2)(A). Amendment 709 is not listed in U.S.S.G. § 1B1.10(c). See

U.S.S.G. § 1B1.10(c).

      Here, Rivers was not eligible for a § 3582(c)(2) sentence reduction based on



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Amendment 709 because Amendment 709 is not a retroactively applicable

guideline amendment listed in § 1B1.10(c). See U.S.S.G. § 1B1.10(a)(2)(A);

United States v. Armstrong, 347 F.3d 905, 907-08 (11th Cir. 2003) (holding that

the district court did not err in determining that the defendant’s sentence could not

be reduced under § 3582(c)(2) when the amendment at issue was not listed in

§ 1B1.10(c)). To the extent that Rivers argues that Amendment 709 applies

retroactively because it is a clarifying amendment, his argument fails because we

have held that, while consideration of a clarifying amendment “may be necessary

in the direct appeal of a sentence or in a petition under [28 U.S.C.] § 2255, it bears

no relevance to determining retroactivity under § 3582(c)(2).” Armstrong, 347

F.3d at 908-09.

      AFFIRMED.




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