United States v. Gomez-Elvir

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 23, 2003
• Docket: 02-20916
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20916 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE LUIS GOMEZ-ELVIR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-309-ALL --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Jorge Luis Gomez-Elvir (Gomez), federal prisoner number

88307-079, appeals the denial of his motion for modification of

sentence pursuant to 18 U.S.C. § 3582(c)(2). He argues that

Amendment 632 is a clarification of U.S.S.G. § 2L1.2 and should

be applied retroactively. In support of his position, he cites

to two of this court’s unpublished opinions. Neither case

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20916 -2-

supports his proposition that Amendment 632 is retroactively

applicable in a motion under 18 U.S.C. § 3582(c).

Amendments to the Sentencing Guidelines may not be applied

retroactively upon a motion under 18 U.S.C. § 3582(c)(2) unless

they are specifically set forth in U.S.S.G. § 1B1.10(c).

U.S.S.G. § 1B1.10(a), p.s. (Nov. 2001). Amendment 632 is not

listed in U.S.S.G. § 1B1.10(c) and therefore may not be applied

retroactively to Gomez’s motion. 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 in denying Gomez’s motion. AFFIRMED.