IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50082
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAY GARCIA-MARQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-01-CR-6-ALL
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June 21, 2002
Before DAVIS, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Clay Garcia-Marquez (Garcia), a federal prisoner, has appealed
the district court’s denial of his motion for resentencing filed
pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 2L1.2 as revised
effective November 1, 2001. Garcia was sentenced in September 2001
for a violation of 8 U.S.C. § 1326(a) and (b)(2). We AFFIRM.
Garcia contends that the district court should resentence him
under the guidelines which became effective November 1, 2001, even
1
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that this opinion should not be published and is not precedent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.
though he was sentenced in September 2001. His argument that the
relevant guideline, U.S.S.G. § 2L1.2(b), is retroactive because it
is merely clarifying, lacks merit because “the amendment’s purpose
was to effect substantive changes in the punishment for [8 U.S.C.
§ 1326] offenses.” See United States v. McIntosh, 280 F.3d 479,
485 (5th Cir. 2002). Furthermore, because the amendment “is not
listed in U.S.S.G. § 1B1.10(c), [it] cannot be given retroactive
effect in the context of [an 18 U.S.C.] § 3582(c)(2) motion.”
United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996).
Garcia requests relief in his reply brief, for the first time,
on a claim of ineffective counsel. Also for the first time, Garcia
asks this court to order the Immigration and Naturalization Service
to cease deportation proceedings against him, and to order the
Bureau of Prisons to classify him as a United States citizen.
However, “[t]his Court will not consider a claim raised for the
first time in a reply brief.” Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993); accord Price v. Roark, 256 F.3d 364, 368 n.2 (5th
Cir. 2001).
AFFIRMED.
2