United States v. Gonzalez

* 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that this opinion should not be published and is not precedent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
October 21, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40339
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:93-CR-96-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Luis Gonzalez, federal prisoner # 04434-078, appeals the
district court’s denial of his motion for modification of his
sentence pursuant to 18 U.S.C. § 3582(c)(2). Gonzalez was
convicted of possession with intent to distribute cocaine.
Gonzalez argues that Amendment 528 merely clarifies the career
offender guideline and, therefore, he need not establish the
retroactivity requirement of 18 U.S.C. § 3582(c)(2).

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No. 03-40339
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The language of the statute provides that a district
court may not modify a term of imprisonment pursuant to 18 U.S.C.
§ 3582(c)(2) unless the term has been subsequently lowered by an
amendment to the Sentencing Guidelines. 18 U.S.C. § 3582(c)(2);
see United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th
Cir. 1997). An amendment to the Sentencing Guidelines may not be
applied retroactively upon a motion under 18 U.S.C. § 3582(c)(2)
unless it is specifically set forth in U.S.S.G. § 1B1.10(c).
U.S.S.G. § 1B1.10(a), p.s. (Nov. 2001). Because Amendment 528
is not listed in U.S.S.G. § 1B1.10(c), it may not be applied
retroactively on Gonzalez’s motion. See United States v. Drath,
89 F.3d 216, 218 (5th Cir. 1996). Accordingly, the district
court did not abuse its discretion when it denied Gonzalez’s
18 U.S.C. § 3582(c)(2) motion.
AFFIRMED.

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