United States v. Coneo-Guerrero , 86 F. App'x 438 ( 2004 )

PER CURIAM.

After carefully considering the briefs and record on appeal, we affirm the decision below.

The appellant could benefit from a retroactive application of Amendment 640 only if the amendment were listed as retroactive under U.S.S.G. § lB1.10(c), or it served merely to clarify the existing guideline. United States v. Prezioso, 989 F.2d 52 (1st Cir.1993). The amendment satisfies neither condition. It is not listed under U.S.S.G. § lB1.10(c), and it substantively changed the guideline by creating an entirely new cap on offense level. See United States v. Diaz-Cardenas, 351 F.3d 404 (9th Cir.2003); United States v. Garcia, 339 F.3d 116 (2nd Cir.2003).

Affirmed. Loe. R. 27(c).