IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2009
No. 08-10411
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TOMMY LEE FANNIN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-19-ALL
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Tommy Lee Fannin, federal prisoner # 29268-177, pleaded guilty to one
count of being a felon in possession of a firearm and was sentenced to a 188-
month term of imprisonment. Fannin appeals the district court’s order denying
his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence.
Pursuant to § 3582(c)(2), a defendant may have his sentence modified if
he was sentenced to a term of imprisonment based upon a sentencing range that
subsequently was lowered by the Sentencing Commission. The district court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10411
may grant a reduction if consistent with the applicable policy statements issued
by the Sentencing Commission. § 3582(c)(2); United States v. Gonzalez-Balderas,
105 F.3d 981, 982 (5th Cir. 1997). Section 3582(c)(2) applies only to retroactive
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).
Fannin contends that he is entitled to have his sentence reduced pursuant
to Amendment 709. He asserts that application of this amendment would
dramatically lower his sentencing guidelines range.
The Sentencing Commission has stated that unless an amendment 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) (May 2008). Therefore, under the
plain language of § 3582(c), a district court is not authorized to reduce a sentence
based on Amendment 709 because that would be inconsistent with Sentencing
Commission Policy. See § 1B1.10, comment. (n.1(A)).
Fannin argues that Amendment 709 is a clarifying amendment that
should be applied retroactively even though it is not listed in § 1B1.10(c). This
court has held, however, that, except on direct appeal, a clarifying amendment
is not retroactively applied unless the amendment is listed in § 1B1.10(c). See
United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).
The district court did not abuse its discretion in denying Fannin’s § 3582(c)
motion. See Shaw, 30 F.3d at 28. Accordingly, the judgment of the district court
is AFFIRMED.
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