United States v. Villa-Fabela ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10071
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR VILLA-FABELA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:97-CR-4-ALL-C
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Oscar Villa-Fabela, federal prisoner #11366-006, appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for
reduction of his sentence for illegal reentry into the United
States after deportation. Villa-Fabela asserts that he is
entitled to a sentence reduction under Amendment 632, as that
recent amendment to the sentencing guidelines retroactively
*
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that this opinion should not be published and is not precedent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. 02-10071
-2-
applies to reduce U.S.S.G. § 2L1.2's enhancement for deportation
following an aggravated felony conviction.
Pursuant to 18 U.S.C. § 3582(c)(2), a sentencing court may
reduce a term of imprisonment “based on a sentencing range that
has been subsequently lowered by the Sentencing Commission
. . . , if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2) applies only to amendments to the sentencing
guidelines that operate retroactively, as set forth in subsection
(c) of the applicable policy statement, U.S.S.G. § 1B1.10, p.s.
United States v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).
Amendment 632 is not listed in U.S.S.G. § 1B1.10(c), p.s.
Thus, an 18 U.S.C. § 3582(c)(2) sentence reduction based on
Amendment 632 would not be consistent with the Sentencing
Commission’s policy statement. See id. at 218. Amendment 632
therefore cannot be given retroactive effect in the context of an
18 U.S.C. § 3582(c)(2) motion. See id.In light of the foregoing, the district court lacked the
authority to reduce Villa-Fabela’s sentence pursuant to 18 U.S.C.
§ 3582(c)(2). See United States v. Lopez, 26 F.3d 512, 515 & n.3
(5th Cir. 1994). The district court’s judgment denying Villa-
Fabela’s motion for reduction of sentence is AFFIRMED.