United States v. Espericueta ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
May 25, 2004
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
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No. 03 - 20682
SUMMARY CALENDAR
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISRAEL ESPERICUETA,
Defendant - Appellant.
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas
(H-90-CR-428-12)
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Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal we review the district court’s denial of Defendant - Appellant, Israel
Espericueta’s, 18 U.S.C. § 3582(c)(2) motion and his motion for a completed ruling.
Espericueta was convicted of conspiracy to possess with intent to distribute cocaine,
conspiracy to launder money, and aiding and abetting money laundering. He now argues that his
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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sentence should be reduced by the retroactive application of two recent amendments to the
Sentencing Guidelines: (1) a November 1, 1998 clarifying amendment to U.S.S.G. §5K2.0 and its
commentary, labeled as amendment 585 in Appendix C of the Guidelines, and (2) a November 1,
2002 amendment to U.S.S.G. § 2D1.1 and the commentary to U.S.S.G. § 3B1.2, labeled as
Amendment 640 in Appendix C of the Guidelines.
Neither Amendment 585, nor Amendment 640 are listed in U.S.S.G. § 1B1.10(c) as
amendments to be applied retroactively, thus Espericueta is not entitled to collateral relief. See
U.S.S.G. 1B1.10(c); United States v. Davidson, 283 F.3d 681, 684 (5th Cir. 2002); United States
v. Drath, 89 F.3d 216, 217 (5th Cir. 1996). The district court did not abuse its discretion in
denying Espericueta a reduction of his sentence. See United States v. Shaw, 30 F.3d 26, 28-29
(5th Cir. 1994).
Further, we affirm the district court’s denial of Espericueta’s motion for completed ruling
as we assume the district court conducted the proper review absent evidence to the contrary.
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
For the foregoing reasons, we affirm the district court’s decision.
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