United States v. Gustavo Arteaga , 156 F. App'x 142 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
No. 05-10859 November 17, 2005
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 98-00655-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO ARTEAGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 17, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Defendant-Appellant Gustavo Arteaga, a federal prisoner appealing pro se,
appeals the district court’s denial of his section 18 U.S.C. § 3582(c)(2) motion
seeking modification of his term of imprisonment. No reversible error has been
shown; we affirm.
Defendant pled guilty in August 2000 to a drug trafficking offense in
violation of 21 U.S.C. § 841(b)(1)(A). The district court concluded that the
appropriate Guideline range was 78 to 97 months imprisonment. Because the
statutory mandatory minimum for the offense conduct was 10 years’
imprisonment, Defendant was sentenced to 10 years’ imprisonment and five years
of supervised release. Defendant appealed his sentence, but the appeal was
dismissed based on a valid appeal waiver in Defendant’s plea agreement.
Some four years after Defendant’s sentencing, Amendment 668, U.S.S.G.
App.C Supp. (Amend. 668) took effect. Amendment 668 modified the maximum
base offense levels under U.S.S.G. § 2D1.1(a)(3) for certain offenders who meet
the criteria for mitigating role adjustment under §3B1.2. Defendant maintains that
Amendment 668 is a clarifying amendment and is applicable retroactively to allow
for the reduction of his sentence under § 3582(c)(2). The district court denied
Defendant’s motion without opinion.
We review denial of a motion to reduce sentence under 18 U.S.C. §
3582(c)(2) for abuse of discretion. See United States v. Brown, 332 F.3d 1341,
1343 (11th Cir. 2003). A court may, after consideration of sentencing factors set
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out in 18 U.S.C. § 3553(a), reduce the term of imprisonment based on a later
lowering of the sentencing range by the Sentencing Commission “if such
reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). The Sentencing Commission’s policy,
U.S.S.G. § 1B1.10(a), provides that reduction of a sentence because of a
Guidelines amendment is consistent with Sentencing Commission policy and is
authorized only if the amendment is listed in U.S.S.G. § 1.B1.10(c). And this
Court has ruled that -- consistent with Sentencing Commission policy -- only
amendments listed in § 1.1B.10(c) are subject to retroactive application in the
context of a § 3582(c)(2) motion. See United States v. Rodriguez-Diaz, 19 F.3d
1340, 1341 (11th Cir. 1994).
Amendment 668 is not listed in § 1B1.10(c). Defendant argues that
Amendment 668 is a clarifying amendment and, as such, may be applied
retroactively in the absence of § 1B1.10(c) listing.* Whatever allowance our case
law may make for retroactive application of clarifying amendments, such
allowance has no application in the context of a § 3582 motion. See United States
v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003). Whether Amendment 668 is
*
Clarifying amendments “clarify a guideline rather than make substantive changes.” United States
v. Gunby, 112 F.3d 1493, 1499 n.9 (11th Cir. 1997).
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clarifying or substantive is of no consequence; “only amendments, clarifying or
not, listed under subsection (c) of § 1B1.10, and that have the effect of lowering
the sentencing range upon which a sentence was based, may be considered for
reduction of a sentence under § 3582(c)(2).” Id. (emphasis in original).
The district court committed no abuse of discretion. Because Amendment
668 is not listed in § 1B1.10(c), it is not retroactively applicable and provides no
support for § 3582(c)(2) relief.
AFFIRMED.
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