United States v. Andazola-Quezada

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 19, 2003
• Docket: 02-50579
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50579 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE DE JESUS ANDAZOLA-QUEZADA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1317-DB -------------------- February 19, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Federal prisoner Felipe De Jesus Andazola-Quezada appeals

the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion.

In that court he argued that § 2LI.2(b) of the 2001 version of

the Sentencing Guidelines, as amended by Amendment 632, should

be applied retroactively to his sentence.

Amendments to the Sentencing Guidelines may not be applied

retroactively on a § 3582(c)(2) motion unless they are listed in

U.S.S.G. § 1B1.10(c). U.S.S.G. § 1B1.10(a), p.s. (Nov. 2001).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-50579 -2-

Amendment 632 is not listed in § 1B1.10(c) and therefore may not

be applied retroactively. See United States v. Drath, 89 F.3d

216, 218 (5th Cir. 1996) (amendment not listed in U.S.S.G.

§ 1B1.10(c) “cannot be given retroactive effect in the context of

a § 3582(c)(2) motion”). The district court did not abuse its

discretion when it denied Andazola-Quezada’s § 3582(c)(2) motion.

Also without merit is Andazola-Quezada’s Apprendi v. New

Jersey, 530 U.S. 466 (2000), argument. See Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998); see also United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.

denied, 531 U.S. 1202 (2001).

AFFIRMED.