[DO NOT PUBLISH]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, 

, 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, 

, 1267 (11th Cir.

2002). We also “review de novo questions of statutory interpretation.” United

States v. Maupin, 

, 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, 

, 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, 

, 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.” 

§ 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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