United States v. Hartin ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2009
No. 08-10832
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VALREE HARTIN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-69-1
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Valree Hartin, federal prisoner # 35459-177, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence imposed
following his guilty plea convictions for distribution of cocaine base and cocaine.
Hartin argues that he is entitled to have his sentence reduced in light of
Amendment 518 to the Sentencing Guidelines. He asserts that Amendment 518
is a “clarifying” amendment, and thus it can be applied retroactively despite its
*
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should not be published and is not precedent except under the limited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. 08-10832
omission under U.S.S.G. § 1B1.10. He requests that this court remand his case
to the district court for resentencing.
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
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). This court reviews a district court’s refusal
to lower a defendant’s sentence under § 3582(c)(2) for abuse of discretion. See
United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
Amendment 518, which became effective November 1, 1995, was already
in effect when Hartin was sentenced. See U.S.S.G. App. C., amendment 518;
Shaw, 30 F.3d at 29. Additionally, the Sentencing Commission has stated in
§ 1B1.10 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 518 is not listed as
an amendment covered by the policy statement in § 1B1.10(c). See § 1B1.10(c)
& comment. (n.1(A)) (May 2008). Further, we have held 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
(5th Cir. 1996). Accordingly, the district court did not abuse its discretion in
denying Hartin’s § 3582(c)(2) motion. See Shaw, 30 F.3d at 28. The judgment
of the district court is therefore AFFIRMED.
2