[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR TH E ELEV ENTH C IRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT October 07, 2003 THOMAS K. KAHN No. 02-14234 CLERK ________________________

D. C. Docket No. 91-00003-CR-001

UNI TED STA TES OF A MER ICA,

Plaintiff- Appe llee,

versus

HUC KLE Y AR MST RON G, a.k.a. Sh orty,

Defen dant-A ppellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama _________________________

(October 7, 2003)

Before BIRCH, BARKETT and HILL, Circuit Judg es. BARKE TT, Circuit Judge:

Huckley Arm strong contests the denial of his pro se motion to reduc e his

sentence pursua nt to 18 U .S.C. § 3 582(c) (2), wh ich gives retroactiv e effect to

certain amendments to the Sentencing Guidelines that lower the sentencing range

upon which an earlier sentence was based.1 Armstrong specifically claimed that he

was entitled to a retroactive reduction of his sentence under Amendments 599, 600,

and 63 5.

Although Armstrong had previously filed unsuccessful motions under 28

U.S.C. § 2255, the district court first ruled that Armstrong’s § 3582(c)(2) motion

was not a successive habeas petition, holding that “the existence of prior motions

to amend the sentence is . . . not a bar to a motion under 18 U.S.C. § 3582(c)(2).”

How ever, the c ourt also ruled tha t Arms trong w as not en titled to a red uction o f his

sentence under § 3582(c)(2) on the basis of Amendments 599, 600 or 635 to the

1 18 U.S.C. § 3582(c)(2) provides: (c) Modification of an Imposed Term of Imprisonment. - The court may not modify a term of imprisonment once it has been imposed except that - . . .

(2) in 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 . . . 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.

2 Sentencing Guidelines. We agree with the district court on both counts and

affirm.2

I. DISCUSSION

Any retroactive reduction in sentence subsequent to a motion filed under §

3582(c)(2) must be “consistent with applicable policy statements issued by the

Sentencing Comm ission.” 18 U .S.C. § 358 2(c)(2). Th e Sentencing Comm ission’s

policy statement on retroactive reduction of sentences, U.S.S.G. § 1B1.10,

provid es that:

(a) Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant’s term of impriso nment is authoriz ed und er 18 U .S.C. § 3 582(c) (2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defen dant’s term of impr isonme nt under 18 U .S.C. § 3 582(c) (2) is not consistent with this policy statement and thus is not authorized. (emph asis adde d).

...

(c) Amendments covered by this policy statement are listed in Appe ndix C as follow s: 126, 1 30, 156 , 176, 26 9, 329, 3 41, 371 , 379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, and 606.

2 We review de novo all legal conclusions made by the district court with respect to the scope of its authority pursuant to the Sentencing Guidelines. United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002).

3 Thus, for a sentence to be reduced retroactively under § 3582(c)(2), a court

must determine whether there has been an amendment to the Sentencing

Guide lines that h as lowered the g uideline r ange ap plicable to that senten ce and is

listed under § 1B1.10(c).

A. Amendments 600 and 599

Amendment 600 3 is not listed in § 1B1.10(c); therefore, the district court

did not e rr in con cluding that Arm strong’s sentence could n ot be lega lly reduce d.

Amendment 599 4 is listed in su bsection (c) of § 1 B1.10 . How ever, altho ugh it

qualifies a s an ame ndmen t for redu ction pu rposes, it d oes not a pply factu ally in

Armstro ng’s case. As the district court no ted in its decision, A rmstrong’s

“sentence imposed on the underlying offenses was not affected by [his] possession

of firearms.” R ather, the base of fense level w as adjusted up ward for Armstro ng’s

aggravating “role as an organizer, leader, manager or supervisor.” Thus, the

3 Amendment 600 became effective November 1, 2000 and revises U.S.S.G. § 2K2.4 to application of the guidelines to career offenders. Among other things, the Amendment “prohibits the use of 18 U.S.C. § 924(c) [possession of a firearm in relation to a drug trafficking crime] convictions either to trigger application of the career offender guideline, U.S.S.G. § 4B1.1, or to determine the appropriate offense level under that guideline.” United States Sentencing Commission Guidelines Manual Supp.to App. C (November 1, 2002) at 72. 4 Amendment 599 became effective November 1, 2000 and expands the commentary of U.S.S.G. § 2K2.4, which addresses the use of a firearm in relation to certain crimes. The purpose of Amendment 599 is “to clarify under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) . . . may receive weapon enhancements contained in the guidelines for those other offenses.” U.S.S.C. Guidelines Manual Supp. to App. C at 70.

4 district cou rt did no t err in rejec ting Ar mstron g’s claim f or redu ction on the basis

of Am endme nt 599. M oreove r, we no te that Ar mstron g has co nceded as much in

his brief.

B. Amendment 635

Armstrong concedes that, like Amendment 600, Amendment 6355 is not

explicitly listed in § 1B1.10(c). He argues, however, that Amendment 635 was

passed to clarify the commentary 6 of U.S .S.G. § 3B1.2 and that it is now w ell

settled in th is Circuit th at clarifying amend ments ar e retroactiv e. See, e.g., United

States v. Anderton, 136 F .3d 747 , 751 (1 1th Cir. 1 998); United States v. Howard,

923 F .2d 150 0, 1504 (11th C ir. 1991 ); United States v. M arin, 916 F.2d 1536, 1538 ( 11th C ir. 1990 ); U.S. v. Scroggins, 880 F .2d 120 4, 1215 (11th C ir. 1989 ).

See also United States v. Gunby, 112 F.3d 1493, 1500 n.9 (11th Cir. 1997)

(“subsequent amendments that clarify a guideline, rather than make substantive

changes, should be considered on appeal regardless of date of sentencing”).

5 Amendment 635 became effective November 1, 2001 and amends the commentary to U.S.S.G. § 3B1.2. Amendment 635 addresses whether a defendant may be considered for a mitigating role adjustment where he or she performed a limited function in concerted criminal activity and was only held accountable for conduct in which he or she was personally involved. U.S.S.C. Guidelines Manual Supp. to App. C at 232-33. 6 Amendments to the commentary are clarifying amendments. United States v. Camacho, 40 F.3d 349, 354 (11th Cir. 1994).

5 While Amendment 635 makes explicit clarifying changes to the application

of § 3B1.2 and thus qualifies as a “clarifying amendment” to the Sentencing

Guidelines to be given retroactive effect, the cases Armstrong cites are not

applicable to his situation.7 Our cases have considered applying a clarifying

amend ment retr oactively o nly in the c ontext o f a direct ap peal and a 28 U .S.C. §

2255 h abeas pe tition. See, e.g., Anderton, 136 F .3d at 75 0; Burke v. U.S., 152

F.3d 1329, 133 2 (11th Cir. 1998). W hile consideration of Amend ment 635 as a

clarifying amendment may be necessary in the direct appeal of a sentence or in a

petition under § 2255, it bears no relevance to determining retroactivity under §

3582( c)(2).

As the government maintains, Armstrong’s argument regarding clarifying

amend ments “is w ithout m erit becau se it fails to re cognize . . . that a motion to

modify an otherwise final judgment pursuant to § 3582(c)(2) is a limited and

narrow exception to the rule that final judgments are not to be modified.” Under

this provision, Congress has allow ed for limited exceptions to the rule of finality,

7 The Supreme Court has held that the Sentencing Commission may make “clarifying revisions” both to the commentary of the Sentencing Guidelines and the guidelines themselves. Stintson v. U.S., 508 U.S. 36, 46 (1993). By definition, “[c]larifying amendments do not effect a substantive change, but provide persuasive evidence of how the Sentencing Commission originally envisioned application of the relevant guideline.” Burke, 152 F.3d at 1332. In United States v. Boyd, 291 F.3d 1274 (11th Cir. 2002), we retroactively applied Amendment 635 as a revision to the commentary of a Sentencing Guideline when it was raised on direct appeal.

6 but only where a sentence of imprisonment was “based on a sentencing range that

has subsequently been lowered by the Sentencing Commission” and § 3582(b).8

Thus, o nly amen dments , clarifying or not, listed under subsection (c) of § 1B1.10,

and that have the effect of lowering the sentencing range upon which a sentence

was ba sed, may be considered fo r reductio n of a sen tence un der § 35 82(c)(2 ).

More over, w e have, in essence, a lready so held. See United States v. Carter, 110

F.3d 7 59 (11 th Cir. 19 97) (ho lding tha t Amendment 484 could be applied

retroactiv ely becau se it was lis ted und er §1B 1.10(c) , but Amen dment 5 18 cou ld

not because it was not listed therein, even though it “clarified” the rule established

under Amendment 484 (w hich was retroactive)); White, 305 F.3d 1264 (holding

that Am endme nt 489 c ould no t be retroa ctively app lied in con junction with

Amendment 599 under a § 3582(c)(2) motion because Amendment 489 was not

itself mad e retroactiv e by § 1B 1.10(c) ).

We ag ree with several o f our siste r circuits th at have es tablished the brigh t-

line rule th at amend ments cla imed in § 3582( c)(2) m otions m ay be retro actively

applied solely where express ly listed un der § 1B 1.10(c) . See e.g. United States v.

Perez, 129 F.3d 255, 259 (2d Cir. 1997); United States v. W yatt, 115 F.3d 606,

8 28 U.S.C. § 994(o) stipulates that “[t]he Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines . . . .”

7 608-0 9 (8th C ir. 1997 ); United States v. D rath, 89 F.3d 216, 218 (5th Cir. 1996);

United States v. Thompson, 70 F.3 d 279, 2 81 (3d Cir. 199 5); United States v.

Dullen, 15 F.3 d 68, 70 -71 (6th Cir. 199 4); United States v. A vila, 997 F.2d 767, 768 (10th Cir. 1993).

We also agree with those circuits that have specifically held that “clarifying

amendments” are no exception to this rule and may only be retroactively applied

on direc t appeal o f a senten ce or un der a § 2 255 m otion. See, e.g., Drath, 89 F.3d at 217 (noting that clarifying amendments only apply retroactively on direct

appeal, not under motions pursuant to § 3582(c)(2) where the amendments are not

listed in § 1 B1.10 (c)); Lee v. U.S., 221 F.3d 1335 (6th Cir. 2000) (unpublished

decision) (holding that “while clarifying amendments to the Sentencing Guidelines

may be applied retroactively to reduce a defendan t's sentence . . . [defendant] must

seek this r elief in a m otion to v acate sente nce und er 28 U .S.C. § 2 255”).

8 II. CONCLUSION

Based on the foregoing, we AFFIRM the district court’s denial of

Armstrong’s § 3582(c)(2) motion to apply Amendment 635 retroactively towards

reduction of his sentence.9

9 Armstrong later sought to add Amendment 500 to his § 3582(c)(2) motion. Amendment 500 became effective on November 1, 1993, is not listed in subsection (c) of §1B1.10, and has been deemed a “clarifying amendment” by this Circuit. United States v. Glover, 179 F.3d 1300, 1303 n.4 (11th Cir. 1999) (noting that Amendment 500 “was specifically added by the Commission to clarify the guideline and to resolve a split among the circuits about whether a defendant must manage or supervise other persons to qualify for an enhancement under section 3B1.1”). The district court found that it lacked jurisdiction to review Armstrong’s request for leave to amend because he made it after filing his appeal with this Court. The holding in our decision today also applies to Armstrong’s Amendment 500 claim.

9