*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

December 1, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-5111

v. (N.D. Oklahoma)

ALPHIE PHILLIP MCKINNEY,

Defendant - Appellant.

(D.C. No. 4:08-CR-00017-TCK-1)

ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and SEYMOUR, Circuit Judges.

Alphie Phillip McKinney, a federal prisoner appearing pro se, appeals from

the district court’s dismissal of his motion for reduction of sentence under

18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that

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 or the Director of the Bureau of

Prisons, or on its own motion, the court may reduce the term of
-2-

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. 

In seeking a reduction in his sentence, Mr. McKinney relied on Amendments 599

and 709 to the United States Sentencing Guidelines (USSG). We affirm the

dismissal because Amendment 599 predated his sentence and Amendment 709 is

not retroactive.

Mr. McKinney was indicted on January 9, 2008, on one count of

possessing, on or about October 31, 2007, a firearm and ammunition after having

previously been convicted of a crime punishable by imprisonment for a term

exceeding one year. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On July 15,

2008, he pleaded guilty to the charge. He was sentenced in October 2008 to 48

months’ imprisonment based on an offense level of 21 and a criminal-history

category of III. On July 13, 2009, he filed his motion under § 3582(c)(2),

contending that he was entitled to a sentence reduction. The district court

dismissed for lack of jurisdiction. On appeal Mr. McKinney challenges this

dismissal and also argues that his sentence was unlawful under United States v.

Booker, 543 U.S. 220 (2005).

We review de novo a district court’s legal conclusions regarding the scope

of its authority under 18 U.S.C. § 3582(c)(2). See United States v. Rhodes, 549

F.3d 833, 837 (10th Cir. 2008). Mr. McKinney’s first claim is that the district
-3-

court erred in not reducing his sentence under Amendment 599. But Amendment

599 became effective in 2000, see U.S. Sentencing Guidelines Manual app. C,

Vol. II at 71, long before Mr. McKinney was sentenced. Therefore, he cannot

obtain relief. See 18 U.S.C. § 3582(c)(2) (a court may reduce a sentence if it was

based on a “sentencing range that has subsequently been lowered” (emphasis

added)).

Mr. McKinney’s second argument is that the district court erred in ruling

that Amendment 709 is not retroactive. Amendment 709 is not, however, in the

list of retroactive amendments set forth in USSG § 1B1.10(c). It therefore cannot

be considered the basis for a sentence reduction under § 3582(c)(2). See USSG

§ 1B1.10(a)(2)(A). 

As for Mr. McKinney’s Booker claim, we decline to address it because he

did not raise it in district court. See King v. United States, 301 F.3d 1270, 1274

(10th Cir. 2002) (As a general rule, “this court will not consider an issue on

appeal that was not raised below.”)

We AFFIRM the district court’s dismissal of Mr. McKinney’s motion.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge