United States v. Gonzalez

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. 02-50559 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MODESTO ZAMBRANO GONZALEZ, also known as Fred Sambrano, also known as Modesto Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-470-ALL --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Modesto Zambrano Gonzalez is appealing the district court's

denial of his motion for the reduction of his sentence pursuant

to 18 U.S.C. § 3582(c)(1). He argues that he is entitled to have

his sentence shortened under Amendment 632 to the Sentencing

Guidelines.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50559 -2-

Amendments may be applied retroactively upon a motion under

18 U.S.C. § 3582(c)(2) only if 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 § 1B1.10(c) and therefore may not

be applied retroactively. See § 1B1.10(c), p.s. (Nov. 2001);

United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996). The

district court lacked the authority to modify Gonzalez’s sentence

under 18 U.S.C. § 3582(c)(2) and, thus, did not abuse its

discretion in denying the motion under that provision.

AFFIRMED.