United States v. Arce ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20221
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDY OCAMPO ARCE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-91-CR-149-3
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October 21, 1997
Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Freddy Ocampo Arce (Arce), federal prisoner
# 59323-079, appeals the district courts denial of his motion for
modification of the imposed term of imprisonment under 18 U.S.C.
§ 3582(c)(2). Arce argues that his sentence should be reduced
under Amendment 518 to U.S. Sentencing Guideline § 2D1.1 based on
the amount of drugs he actually delivered rather than the amount
he negotiated. Additionally, Arce argues that Amendment 442 to
§ 1B1 allows the retroactive application of Amendment 518.
*
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that this opinion should not be published and is not precedent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. 97-20221
-2-
Because Amendments 518 and 442 are not listed as retroactive in
§ 1B1.10(c) of the Guidelines, Arce’s claim concerning these
amendments is not cognizable under § 3582(c)(2). See United
States v. Shaw, 30 F.3d 26, 28- 29 (5th Cir. 1994).
Arce’s appeal is without arguable merit and is thus
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. 5th Cir. R.
42.2.
APPEAL DISMISSED.