IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41049
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
HECTOR ALONZO
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-238-ALL
--------------------
February 26, 2003
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Hector Alonzo, federal prisoner number 90913-079, appeals
the denial of his motion for modification of his sentence
pursuant to 18 U.S.C. § 3582(c)(2). He argues that Amendment 635
is a clarification of U.S.S.G. § 3B1.2 (Mitigating Role) and
should be applied retroactively.**
*
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that this opinion should not be published and is not precedent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.
**
The Government argues that Alonzo’s appeal was untimely
because his motion for reconsideration was filed more than ten
days after the district court entered its judgment denying his
motion for a modification of sentence. Alonzo’s motion for
No. 02-41049
-2-
Amendments to the Sentencing Guidelines may not be applied
retroactively upon a motion under 18 U.S.C. § 3582(c)(2) unless
they are specifically set forth in U.S.S.G. § 1B1.10(c).
U.S.S.G. § 1B1.10(a), p.s. (Nov. 2001). Amendment 635 is not
listed in U.S.S.G. § 1B1.10(c) and therefore may not be applied
retroactively under Alonzo’s motion. See United States v. Drath,
89 F.3d 216, 218 (5th Cir. 1996) (amendment not listed in
U.S.S.G. § 1B1.10(c) “cannot be given retroactive effect in the
context of a § 3582(c)(2) motion”).
Alonzo argues, in the alternative, that the Sentencing
Commission acted arbitrarily and capriciously, violating his
civil and constitutional rights, by not making Amendment 635
retroactive under 18 U.S.C. § 3582(c)(2) motions. The Sentencing
Commission considers factors such as “the purpose of the
amendment, the magnitude of the change in the guideline range
made by the amendment, and the difficulty of applying the
amendment retroactively to determine an amended guideline
range....” U.S.S.G. § 1B1.10, comment. (backg’d.). Alonzo has
not shown that the Sentencing Commission’s determination of which
amendments are retroactively applicable under 18 U.S.C.
§ 3582(c)(2) was arbitrary or without a rational basis. The
district court order is AFFIRMED.
reconsideration and thus his appeal are in fact timely. See FED.
R. CRIM. P. 45; see also United States v. Brewer, 60 F.3d 1142,
1143-44 (5th Cir. 1995).