United States v. Gomez-Nieto

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 11, 2002
• Docket: 02-10648
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10648 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO ALBERTO GOMEZ-NIETO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:99-CR-86-1-C -------------------- December 11, 2002

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:*

Mario Alberto Gomez-Nieto, federal prisoner number 34211-

077, 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. He further moves for appointment of

counsel. The motion is DENIED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10648 -2-

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. § 2B1.10(c) and therefore may not be applied

retroactively under 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”).

Gomez also contests the sufficiency of his indictment. He

alleges that it was insufficient for not listing a prior

conviction as an element of his offense. Such a claim is not

cognizable in an 18 U.S.C. § 3582(c)(2) motion. See United

States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994)(Section 3582

motion is not the appropriate vehicle for raising issue other

than retroactive application of subsequently lowered guideline

range). The district court did not abuse its discretion in

denying Gomez’s motion. AFFIRMED.