IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50704
Summary Calendar
UNITES STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CASTELAN, JR.,
also known as Jose Carmen Castelan-Carbajal,
also known as Peter Garcia,
also known as Jose Castellan,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CR-109-ALL
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January 20, 2003
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Castelan, Jr., appeals the denial of his motion to
modify his sentence under 18 U.S.C. § 3582(c)(2)and U.S.S.G.
§ 1B1.10. Castelan argues that Amendment 632 clarifies U.S.S.G.
§ 2L1.1 and applies retroactively.
A district court may reduce a term of imprisonment under 18
U.S.C. § 3582(c)(2) when it is based upon a sentencing range that
*
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that this opinion should not be published and is not precedent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. 02-50704
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has subsequently been lowered by an amendment to the Guidelines,
if the reduction is consistent with the policy statements issued
by the Sentencing Commission. See United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). We review
a district court’s refusal to lower a defendant’s sentence for
abuse of discretion. See United States v. Shaw, 30 F.3d 26, 29
(5th Cir. 1994).
Amendment 632 changed U.S.S.G. § 2L1.2, unlawfully entering
the United States, to provide a more graduated sentencing
enhancement of between 8 and 16 levels. See U.S.S.G. Appendix C,
Supplement, amendment 632. In amending that guideline, the
Commission changed the offense level from 16 to eight for a
defendant who was previously deported after a conviction for a
felony that was not an aggravated felony. Id.
Although this court may consider a clarifying amendment on
direct appeal, neither this court nor the district court
addressing a U.S.S.G. § 3582 motion may consider an amendment not
listed in U.S.S.G. § 1B1.10(c), p.s. See United States v. Drath,
89 F.3d 216, 217 (5th Cir. 1996). The district court was correct
that Amendment 632 was not listed in U.S.S.G. § 1B1.10, and,
consequently, consideration of that amendment was not authorized.
U.S.S.G. § 1B1.10(a) and (c).
Therefore, the district court lacked the authority to reduce
Castelan’s sentence pursuant to § 3582(c)(2), based on Amendment
632. See United States v. Lopez, 26 F.3d 512, 515 & n.3 (5th
No. 02-50704
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Cir. 1994). The district court’s denial of Castelan’s motion to
modify sentence is AFFIRMED.