United States v. Principe-Espinoza

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2003
• Docket: 02-51010
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-51010 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK PRINCIPE-ESPINOZA, also known as Roberto Carlos Sanchez-Gutierez, also known as Frank Principe,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-823-DB --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Frank Principe-Espinoza, federal prisoner # 14170-051,

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

motion wherein he argued that the 2001 Sentencing Guidelines

version of U.S.S.G. § 2L1.2(b) should be applied retroactively to

his sentence under Amendment 632.

Amendments to the Sentencing Guidelines may not be applied

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51010 -2-

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 under Principe-Espinoza'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”). Accordingly,

the district court did not abuse its discretion when it denied

Principe-Espinoza’s 18 U.S.C. § 3582(c)(2) motion.

AFFIRMED.