United States v. Coneo-Guerrero

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1563
UNITED STATES,
Appellee,
v.
JULIO CONEO-GUERRERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Lipez and Howard,
Circuit Judges.
Julio Coneo-Guerrero on brief pro se.
Nelson Perez-Sosa, Assistant United States Attorney, H.S.
Garcia, United States Attorney, and Sonia I. Torres-Pabon,
Assistant United States Attorney, Chief, Criminal Division, on
brief for appellee.
February 3, 2004
Per Curiam. After carefully considering the briefs and record
on appeal, we affirm the decision below.
The appellant could benefit from a retroactive application of
Amendment 640 only if the amendment were listed as retroactive
under U.S.S.G. § 1B1.10(c), or it served merely to clarify the
existing guideline. United States v. Prezioso, 989 F.2d 52 (1st
Cir. 1993). The amendment satisfies neither condition. It is not
listed under U.S.S.G. § 1B1.10(c), and it substantively changed the
guideline by creating an entirely new cap on offense level. See
United States v. Diaz-Cardenas, 351 F.3d 404 (9th Cir. 2003); United
States v. Garcia, 339 F.3d 116 (2nd Cir. 2003).
Affirmed. Loc. R. 27(c).
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