Case: 20-50310 Document: 00515725625 Page: 1 Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 20-50310 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
David John Hammeren,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:11-CR-483-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
David John Hammeren, federal prisoner # 78961-280, appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his 210-
month sentence for receipt of child pornography. Hammeren sought a
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50310 Document: 00515725625 Page: 2 Date Filed: 01/29/2021
No. 20-50310
modification of his sentence based on Amendment 801 to the Sentencing
Guidelines.
Hammeren argues that Amendment 801 is retroactively applicable
because it is a clarifying amendment, as opposed to a substantial amendment.
Generally, a court “may not modify a term of imprisonment once it has been
imposed[.]” 18 U.S.C. § 3582(c). However, when the Sentencing
Commission makes a guidelines amendment retroactive, § 3582(c)(2)
“authorizes a district court to reduce an otherwise final sentence that is based
on the amended provision.” Dillon v. United States, 560 U.S. 817, 821 (2010).
“Any reduction must be consistent with applicable policy statements issued
by the Sentencing Commission.” Id. This court reviews a district court’s
decision to reduce a sentence pursuant to § 3582(c)(2) for abuse of
discretion. United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996).
Under U.S.S.G. § 1B1.10, a defendant is eligible for a sentencing
reduction pursuant to § 3582(c)(2) only if the guideline range applicable to
the defendant has subsequently been lowered as the result of one of the
retroactive amendments listed in subsection (d) of § 1B1.10. United States v.
Guerrero, 870 F.3d 395, 396 (5th Cir. 2017). Amendment 801 is not expressly
listed in § 1B1.10(d). See § 1B1.10(d). Thus, Amendment 801 does not make
Hammeren eligible for a sentencing reduction. See Guerrero, 870 F.3d at 396.
“Only on direct appeal” has this court considered the effect of “a ‘clarifying’
amendment not in effect at the time the offense was committed.” Drath, 89
F.3d at 217.
In light of the foregoing, the district court did not abuse its discretion
in denying Hammeren’s motion for resentencing. See id. at 218.
Accordingly, the judgment of the district court is AFFIRMED.
2