Case: 09-40962 Document: 00511151741 Page: 1 Date Filed: 06/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2010
No. 09-40962
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLEN BOLIVER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
No. 4:03-CR-15-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Glenn Boliver, federal prisoner # 10328-078, appeals the denial of his mo-
tion for relief from sentence pursuant to 18 U.S.C. § 3582(c)(2). He sought to re-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40962 Document: 00511151741 Page: 2 Date Filed: 06/23/2010
No. 09-40962
duce the sentence he received for his methamphetamine conspiracy conviction.
Boliver contends that Amendment 709 to the Sentencing Guidelines ap-
plies retroactively to his criminal history calculation. He also contends that he
is entitled to relief because he was sentenced on incorrect factual information af-
fecting his criminal history calculation. The government argues that the amend-
ment does not apply retroactively and that Boliver otherwise cannot challenge
his sentencing calculations in a postconviction motion to modify his sentence.
Boliver replies that this court has inherent power to grant him relief.
Pursuant to § 3582(c)(2), a district court may reduce a sentence that was
based on a sentencing range that subsequently was lowered by the Sentencing
Commission. § 3582(c)(2); United States v. Gonzalez-Balderas, 105 F.3d 981, 982
(5th Cir.1997). The court may grant a reduction if the reduction is consistent
with the applicable policy statements issued by the Commission. § 3582(c)(2);
Gonzalez-Balderas, 105 F.3d at 982. Section 3582(c)(2) applies only to retro-
active guidelines amendments as set forth in the guidelines policy statement.
See U.S.S.G. § 1B1.10(a); United States v. Shaw, 30 F.3d 26, 28-29 (5th Cir.
1994). The decision whether to reduce a sentence under § 3582(c)(2) is discre-
tionary, so the denial of a § 3582(c) motion is reviewed for abuse of that discre-
tion. See United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
The Sentencing Commission has stated in § 1B1.10 that unless an amend-
ment 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). Therefore, under the plain
language of § 3582(c), a court is not authorized to reduce a sentence based on
Amendment 709, because that would be inconsistent with Commission policy.
See § 1B1.10, comment. (n.1(A)); Shaw, 30 F.3d at 28-29.
Moreover, “[a] 3582(c)(2) motion is not the appropriate vehicle for raising
issues related to the original sentencing.” United States v. Evans, 587 F.3d 667,
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No. 09-40962
674 (5th Cir. 2009) (internal punctuation marks and citation omitted), petition
for cert. filed (Jan. 28, 2010) (No. 09-8939). Boliver’s contentions that his crimin-
al history was incorrectly calculated are “arguments for direct appeal and are
not cognizable under § 3582(c)(2).” Id.
AFFIRMED.
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