[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 15, 2009
No. 08-15778 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00036-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY GIBBS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 15, 2009)
Before BIRCH, WILSON and FAY, Circuit Judges.
PER CURIAM:
Tony Gibbs, a federal prisoner convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e), appeals the district court’s
denial of his pro se 18 U.S.C. § 3582(c)(2) motion to reduce sentence based on
Amendment 709 to the Sentencing Guidelines. After review, we AFFIRM.
I. BACKGROUND
Gibbs filed the instant § 3582 motion in April 2008, arguing that under
Amendment 709, his two prior 1996 state convictions for delivery of cocaine
should not have been counted separately for purposes of determining either his
criminal history category under U.S.S.G. § 4A1.2 or whether he qualified as an
armed career criminal under 18 U.S.C. § 924(e). R1-154 at 4-5. The district court
found that Amendment 709 was not retroactively applicable and denied the motion
accordingly. R1-158 at 1-2. The court also noted that Gibbs was properly
classified as an armed career criminal under § 924(e) based on his 1996
convictions because the fact that the two offenses were committed on different
dates was sufficient to satisfy the standard for determining a predicate offense
under § 924(e). Id. at 3. Gibbs now appeals.
II. DISCUSSION
On appeal, Gibbs argues that Amendment 709 shows that his prior
convictions should have been counted as one single conviction for purposes of
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computing his criminal history category and determining whether he was eligible
for designation as an armed career criminal under 18 U.S.C. § 924(e) because: (1)
they were not separated by an intervening arrest; (2) they were for offenses named
in the same charging document; and (3) he was sentenced for both on the same
day. He argues additionally that the sentencing court violated Shepard v. United
States, 544 U.S. 13, 125 S. Ct. 1254 (2005) when it looked beyond the face of the
charging documents to determine whether the two convictions were separate.
We review a district court’s decision to grant or deny a sentence reduction
for an abuse of discretion only. See United States v. James, 548 F.3d 983, 984 n.1
(11th Cir. 2008) (per curiam). The district court’s interpretation of the guidelines,
including the amendments thereto, is a purely legal issue that we review de novo.
See United States v. Pringle, 350 F.3d 1172, 1178 (11th Cir. 2003).
Section 3582(c)(2) grants district courts discretion to reduce a previously
imposed sentence “if such a reduction is consistent with the applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The
relevant policy statement on retroactive reduction of sentences provides that a
sentence reduction is not consistent with the policy statement, and therefore is not
authorized by § 3582(c)(2), unless: (1) the applicable guideline range was lowered
as a result of an amendment to the Guidelines; and (2) the amendment is listed as
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retroactively applicable under § 1B1.10(c). See U.S.S.G. § 1B1.10(a) (Nov. 2008);
United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003).
Amendment 709 addresses the computation of criminal history scores under
U.S.S.G. § 4A1.1 in two areas: (1) the counting of multiple prior sentences as
single or separate sentences, and (2) the counting of certain misdemeanor or petty
offenses. See U.S.S.G. App. C, Amend. 709.1 Amendment 709 is not listed in
U.S.S.G. § 1B1.10(c) and was not made retroactively applicable by any later
amendment. See U.S.S.G. § 1B1.10(c); see generally U.S.S.G. App. C.
Accordingly, it cannot be the basis for a sentence reduction under § 3582(c). See
Armstrong, 347 F.3d at 909 (“[O]nly amendments, clarifying or not, listed under
subsection (c) of § 1B1.10, and that have the effect of lowering the sentencing
range upon which a sentence was based, may be considered for reduction of a
sentence under § 3582(c)(2).”).
Gibbs’ remaining argument that the sentencing court erred in determining
that he qualified as an armed career criminal under § 924(e) is likewise unavailing
because § 3582(c) is not the proper vehicle for challenging an extraneous
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Amendment 709 clarifies that prior sentences separated by an intervening arrest are to
be counted separately and that prior sentences that were not separated by an intervening arrest
are also to be counted separately “unless the sentences (1) were for offenses that were named in
the same charging document, or (2) were imposed on the same day.” U.S.S.G. App. C,
amend. 709, Reason for Amendment.
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sentencing issue such as this one. See United States v. Bravo, 203 F.3d 778, 781-
82 (11th Cir. 2000) (district court lacked jurisdiction to consider Eighth
Amendment claim when ruling on appellant’s motion for sentence reduction
because in § 3582(c) proceedings “all original sentencing determinations remain
unchanged with the sole exception of the guideline range that has been amended
since the original sentencing”). Gibbs must instead assert this collateral attack on
his sentence in a motion to vacate pursuant to 28 U.S.C. § 2255. See id. at 782.
III. CONCLUSION
Gibbs appeals the district court’s denial of his motion for a reduction in
sentence. Because Amendment 709 is not retroactively applicable, it does not
entitle Gibbs to relief under § 3582(c)(2). Accordingly, the judgment of the district
court is AFFIRMED.
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