United States v. Zamudio-Hinojosa

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 2003
• Docket: 02-50823
• Status: Unpublished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 April 21, 2003

Charles R. Fulbruge III Clerk No. 02-50823 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR ZAMUDIO-HINOJOSA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-1130-ALL-H --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Victor Zamudio-Hinojosa, federal prisoner # 17071-180,

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 § 2L1.2 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

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50823 -2-

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 Zamudio-Hinojosa'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

Zamudio-Hinojosa’s 18 U.S.C. § 3582(c)(2) motion.

AFFIRMED.