United States v. Gomez-Elvir ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20916
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LUIS GOMEZ-ELVIR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-309-ALL
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Jorge Luis Gomez-Elvir (Gomez), federal prisoner number
88307-079, 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. In support of his position, he cites
to two of this court’s unpublished opinions. Neither case
*
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that this opinion should not be published and is not precedent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. 02-20916
-2-
supports his proposition that Amendment 632 is retroactively
applicable in a motion under 18 U.S.C. § 3582(c).
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. § 1B1.10(c) and therefore may not be applied
retroactively to 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”). The district court did not abuse its
discretion in denying Gomez’s motion. AFFIRMED.