United States v. Jaramillo-Cruz

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 23, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40433
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELROY JARAMILLO-CRUZ, also known
as Sergio Valente-Lopez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-1104-ALL
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Elroy Jaramillo-Cruz (Jaramillo), federal prisoner # 94005-
079, 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 in violation of 8 U.S.C.
§§ 1326(a) & (b)(2). Jaramillo argues that he is entitled to a
sentence reduction under Amendment 632, because that recent
amendment to the sentencing guidelines is merely a clarification

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No. 02-40433
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and retroactively applies to reduce U.S.S.G. § 2L1.2's
enhancement for deportation following an aggravated felony
conviction.
Amendments may be applied retroactively upon a motion under
18 U.S.C. § 3582(c)(2) only if 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 § 1B1.10(c) and therefore may not
be applied retroactively. See § 1B1.10(c), p.s. (Nov. 2001);
United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996). The
district court lacked the authority to modify Jaramillo's
sentence under 18 U.S.C. § 3582(c)(2) and, thus, did not abuse
its discretion in denying his motion under that provision.
AFFIRMED.

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