UNITED STATES of America, Plaintiff-Appellee, v. Kenneth L. RIVERS, Defendant-Appellant, 335 F. App'x 5

PER CURIAM: Kenneth L. Rivers, proceeding pro se, appeals the district court’s denial of his pro se motion for a sentence reduction, which he filed pursuant to 18 U.S.C. § 3582(c)(2). Rivers’s motion was based on Amendment 709, which generally affected the calculation of a defendant’s criminal history score.

On appeal, Rivers argues that the district court erred in denying his § 3582(c)(2) motion because, as a clarifying amendment, Amendment 709 retroactively applied to reduce his guideline range. “We review de novo a district court’s conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008). A district court may modify a term of imprisonment in the case of a defendant who was sentenced to a term of imprisonment based on a sentencing range that subsequently has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statements, found in § 1B1.10, state that a sentence reduction is not authorized under § 3582(c)(2) if “none of the amendments listed in subsection (

c) is applicable to the defendant....” U.S.S.G. § 1B1.10(a)(2)(A). Amendment 709 is not listed in U.S.S.G. § lB1.10(c). See U.S.S.G. § 1B1.10(c). Here, Rivers was not eligible for a § 3582(c)(2) sentence reduction based on Amendment 709 because Amendment 709 is not a retroactively applicable guideline amendment listed in § lB1.10(c). See U.S.S.G. § 1B1.10(a)(2)(A); United States v.

Armstrong, 347 F.3d 905, 907-08 (11th Cir.2003) (holding that the district court did not err in determining that the defendant’s sentence could not be reduced under § 3582(c)(2) when the amendment at issue was not listed in § 1B1.10(c)).

To the extent that Rivers argues that Amendment 709 applies retroactively because it is a clarifying amendment, his argument fails because we have held that, while consideration of a clarifying amendment “may be necessary in the direct appeal of a sentence or in a petition under [28 U.S.C.] § 2255, it bears no relevance to determining retroactivity under § 3582(c)(2).” Armstrong, 347 F.3d at 908-09. AFFIRMED.