[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11892 ELEVENTH CIRCUIT
November 17, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 91-00272-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO FERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 17, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Marco Antonio Fernandez, a pro se federal prisoner, appeals the district
court’s denial of his motion seeking modification of his sentence, pursuant to 18
U.S.C. § 3582(c)(2). Fernandez argues that Amendment 709 to the Sentencing
Guidelines would reduce his sentencing range.
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003). However, in the § 3582(c)(2) context, “we review de novo the
district court’s legal conclusions regarding the scope of its authority under the
Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir.
2002). We also “review de novo questions of statutory interpretation.” United
States v. Maupin, 520 F.3d 1304, 1306 (11th Cir. 2008).
Section 3582(c)(2), provides:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). For a district court to have authority, pursuant to
§ 3582(c)(2), to reduce a sentence based on an amendment to the guidelines, two
initial conditions must be met. First, the sentencing range must be lowered by the
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amendment. See United States v. Pope, 58 F.3d 1567, 1568-69, 1572 (11th Cir.
1995) (ordering the district court to reinstate the original sentence on remand
because the statutory-minimum sentence applied, and thus, the sentencing range
was not lowered by the amendment). Second, the amendment must be listed as
retroactively applicable in § 1B1.10(c). United States v. Armstrong, 347 F.3d
905, 909 (11th Cir. 2003).
Amendment 709, which became effective on November 1, 2007, addresses
“two areas of the Chapter Four criminal history rules: the counting of multiple
prior sentences and the use of misdemeanor and petty offenses in determining a
defendant’s criminal history score.” U.S.S.G. App. C, Amend. 709, Reason for
Amendment. With regard to the counting of multiple prior sentences, if the prior
sentences were separated by an intervening arrest, they are to be counted
separately. If the prior sentences were not separated by an intervening arrest, they
are 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.” Id.
Under U.S.S.G. § 4A1.1(a), a defendant receives three criminal history points “for
each prior sentence of imprisonment exceeding one year and one month. U.S.S.G.
§ 4A1.1(a) (2007). Section 4A1.2(a)(2), provides:
If the defendant has multiple prior sentences, determine whether those
sentences are counted separately or as a single sentence. Prior
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sentences always are counted separately if the sentences were imposed
for offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to committing the
second offense). If there is no intervening arrest, prior sentences are
counted separately unless (A) the sentences resulted from offenses
contained in the same charging instrument; or (B) the sentences were
imposed on the same day. Count any prior sentence covered by (A) or
(B) as a single sentence.
U.S.S.G. § 4A1.2(a)(2) (2007).
We need not address whether the amendment is retroactive because even if it
were, the changes would not benefit Fernandez. Fernandez’s arguments focus on
the grouping of his murder and arson offenses. When Fernandez was originally
sentenced in 1992, his murder and arson convictions were grouped together, and he
received a total of three criminal history points for them. If Amendment 709 were
applied, the murder and arson convictions would still be grouped together because
they were not separated by an intervening arrest and he received the sentences on
the same day. Because the longest sentence for his murder and arson convictions
was over a year and a month, he would still receive three criminal history points
for them. See U.S.S.G. § 4A1.1(a). Because Amendment 709 would not lower
Fernandez’s sentencing range, the district court did not have discretion to lower his
sentence. Accordingly, we affirm.
AFFIRMED.
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