IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40689
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ANDY RESTREPO,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:91-CR-67-1
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February 11, 1999
Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*
PER CURIAM:**
Andy Restrepo (Restrepo) was convicted by a jury of multiple
offenses arising out of a conspiracy to possess and distribute
cocaine. 21 U.S.C. § 841. The district court sentenced Restrepo
to a 292-month prison term. This court affirmed his conviction
and sentence. United States v. Restrepo, 994 F.2d 173, 80-81
(5th Cir. 1993).
Restrepo filed a motion to amend or correct sentence
*
This matter is being decided by a quorum. 28 U.S.C. §
46(d).
**
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that this opinion should not be published and is not precedent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. 97-40689
-2-
pursuant to 18 U.S.C. § 3582(c)(2) and based on the retroactive
application of Amendment 505 to the Sentencing Guidelines.
Applying Amendment 505 to Restrepo’s case, the resentencing court
reduced his sentence from 292 months to 235 months. At the
resentencing hearing, Restrepo argued that his sentence should be
reduced even further because he was a minor participant in the
conspiracy. U.S.S.G. § 3B1.2(b). The court denied Restrepo’s
request and this appeal followed.
Restrepo’s request to have his sentence reduced because he
was a minor participant in the conspiracy is not cognizable under
§ 3582. See U.S.S.G. § 1B1.10, comment. (backg’d); see also
United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). The
resentencing court did not have the authority to reduce
Restrepo’s sentence as a minor participant. A motion to reduce
sentence under § 3582 applies only to amendments to the
Guidelines that have a retroactive effect. Id. The court
reduced Restrepo’s sentence based on the retroactive application
of Amendment 505, but did not grant a further reduction as a
minor participant. Accordingly, the sentence imposed by the
resentencing court should be affirmed.
AFFIRMED.