IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60926
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN JOSEPH VACCARO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:95-CR-17-2-GR
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June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
John Joseph Vaccaro, federal prisoner #22940-048, appeals
from the denial of his motion for relief pursuant to 18 U.S.C.
§ 3582(c)(2). For the reasons that follow, we affirm the
district court.
Vaccaro first contends that Apprendi v. New Jersey, 530 U.S.
466 (2000), constituted a clarifying amendment to the Sentencing
Guidelines; that his Apprendi contention was not outside the
scope of 18 U.S.C. § 3582(c)(2); and that his leader/organizer
adjustment violated Apprendi. Guideline factors that enhance a
*
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that this opinion should not be published and is not precedent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. 01-60926
-2-
sentence within the statutory sentencing range do not implicate
Apprendi. United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000), cert. denied, 531 U.S. 1182 (2001). Vaccaro has failed to
show that Apprendi served as a clarifying amendment to the
Sentencing Guidelines; the district court therefore was not
authorized to grant 18 U.S.C. § 3582(c)(2) relief based on
Apprendi. See United States v. Lopez, 26 F.3d 512, 515 & n.3
(5th Cir. 1994).
Moreover, Vaccaro’s 105-month RICO conspiracy term and his
60-month wire fraud term were within the statutory sentencing
ranges for those offenses. 18 U.S.C. §§ 1343, 1962(d), 1963(a).
Vaccaro’s sentence did not violate Apprendi.
Vaccaro also contends that the district court erred by
imposing a fine he could not pay without first ascertaining that
he could pay the fine; that the district court erred by failing
to depart downwardly from his guideline offense level due to his
health; and that the district court erred by declining to impose
his sentence to run concurrently with his undischarged sentence
for a parole violation. Vaccaro’s contentions are not based on
any amendments to the Sentencing Guidelines that would lower his
sentence if those amendments were applicable at the time he was
sentenced. The district court was not authorized to grant 18
U.S.C. § 3582(c)(2) relief on Vaccaro’s contentions. See Lopez,
26 F.3d at 515.
AFFIRMED.