United States v. Gomez-Nieto ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO GOMEZ-NIETO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:99-CR-86-1-C
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December 11, 2002
Before JOLLY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
Mario Alberto Gomez-Nieto, federal prisoner number 34211-
077, appeals the denial of his motion for modification of
sentence pursuant to 18 U.S.C. § 3582(c)(2). He argues that
Amendment 632 is a clarification of U.S.S.G. § 2L1.2 and should
be applied retroactively. He further moves for appointment of
counsel. The motion is DENIED.
*
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that this opinion should not be published and is not precedent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. 02-10648
-2-
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).
U.S.S.G. § 1B1.10(a), p.s. (Nov. 2001). Amendment 632 is not
listed in U.S.S.G. § 2B1.10(c) and therefore may not be applied
retroactively under Gomez’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”).
Gomez also contests the sufficiency of his indictment. He
alleges that it was insufficient for not listing a prior
conviction as an element of his offense. Such a claim is not
cognizable in an 18 U.S.C. § 3582(c)(2) motion. See United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994)(Section 3582
motion is not the appropriate vehicle for raising issue other
than retroactive application of subsequently lowered guideline
range). The district court did not abuse its discretion in
denying Gomez’s motion. AFFIRMED.