United States v. Macias-Castro

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 29, 2002
• Docket: 02-50163
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50163 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE MACIAS-CASTRO, also known as Rogelio Martinez-Lopez, also known as Martin Sotelo-Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-97-CR-106-ALL-JN -------------------- October 29, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Juan Jose Macias-Castro, federal prisoner # 79463-080,

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

motion for reduction of his sentence for illegal reentry into the

United States after deportation. Macias-Castro asserts that he

is entitled to a sentence reduction under Amendment 632, as that

recent amendment to the sentencing guidelines retroactively

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50163 -2-

applies to reduce U.S.S.G. § 2L1.2's enhancement for deportation

following an aggravated felony conviction.

Pursuant to 18 U.S.C. § 3582(c)(2), a sentencing court may

reduce a term of imprisonment “based on a sentencing range that

has been subsequently lowered by the Sentencing Commission

. . . , if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” Section

3582(c)(2) applies only to amendments to the sentencing

guidelines that operate retroactively, as set forth in subsection

(c) of the applicable policy statement, U.S.S.G. § 1B1.10, p.s.

United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).

Amendment 632 is not listed in U.S.S.G. § 1B1.10(c), p.s.

Thus, an 18 U.S.C. § 3582(c)(2) sentence reduction based on

Amendment 632 would not be consistent with the Sentencing

Commission’s policy statement. See Drath, 89 F.3d 218.

Amendment 632 therefore cannot be given retroactive effect in the

context of an 18 U.S.C. § 3582(c)(2) motion. See id.

In light of the foregoing, the district court lacked the

authority to reduce Macias-Castro’s sentence pursuant to 18

U.S.C. § 3582(c)(2). See United States v. Lopez, 26 F.3d 512,

515 & n.3 (5th Cir. 1994). The district court’s order denying

Macias-Castro’s motion for reduction of sentence is AFFIRMED.