United States v. Barnum ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-40199
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HERMAN LEE BARNUM
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:92-CR-48-ALL
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Herman Lee Barnum, now federal prisoner # 04003-078, appeals the
district court’s order denying his 18 U.S.C. § 3582(c)(2) motion to reduce his
sentence. Barnum was convicted of assaulting a federal officer and firearms
offenses, and he was sentenced to a total of 240 months of imprisonment. He
argues that Amendment 709, which clarified the manner in which misdemeanor
and petty offenses are counted in determining the defendant’s criminal history
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40199
points under U.S.S.G. § 4A1.2(c)(1), reduces his criminal history score and the
guidelines range that he should have faced.
We review the district court’s denial of Barnum’s § 3582(c)(2) motion for
an abuse of discretion. See United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
Section 3582(c)(2) applies only to retroactive guidelines amendments, as set
forth in the guidelines policy statement. U.S.S.G. § 1B1.10(a); Shaw, 30 F.3d at
28-29. As the district court determined, Amendment 709 has not been made
retroactively applicable. See § 1B1.10(c) (May 2008).
Barnum does not affirmatively assert that Amendment 709 applies
retroactively. Inasmuch as he argues that the amendment should apply
retroactively because it is a clarifying amendment, his argument fails. Except
on direct appeal, a clarifying amendment is not retroactively applied unless it
is listed in § 1B1.10(c). United States v. Drath, 89 F.3d 216, 217-18 (5th Cir.
1996).
Barnum also relies on Amendment 706 in support of his motion. However,
as the district court determined, because Barnum was convicted of assault and
firearms offenses, the recent amendments to the crack cocaine Guidelines do not
apply to him.
Because Barnum does not rely on any retroactive amendment in support
of his challenge to his criminal history, and because the recent retroactive crack
cocaine amendments have no application to his case, he was clearly ineligible for
relief under § 3582(c)(2). The appeal is without arguable merit and therefore
frivolous. See Hutchins v. McDaniels, 512 F.3d 193, 195-96 (5th Cir. 2007).
Accordingly, it is DISMISSED. See 5 TH C IR. R. 42.2.
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