IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2009
No. 08-10553
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARK STEPHEN GALVEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-231-1
Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mark Stephen Galvez, federal prisoner #30792-177, appeals the district
court’s denial of his February 2008 motion under 18 U.S.C. § 3582(c)(2) to reduce
his sentence imposed in 2003 following his guilty plea conviction for possession
with intent to distribute cocaine and possession of a firearm in furtherance of a
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10553
drug trafficking offense.1 Galvez argues that he is entitled to have his sentence
reduced in light of Amendment 709 to the United States Sentencing Guidelines
(U.S.S.G.), which took effect on November 1, 2007. See U.S.S.G. App. C, amend.
709. Amendment 709 modified the instructions for computing criminal history
in U.S.S.G. § 4A1.2, and Galvez contends that the amendment should be applied
to his case retroactively in order to recalculate his criminal history score. Id.
We review the denial of a motion to reduce a sentence under section 3582(c)(2)
for an abuse of discretion. United States v. Mueller, 168 F.3d 186, 188 (5th Cir.
1999).
Pursuant to section 3582(c)(2), a defendant may have his sentence
modified if he was sentenced to a term of imprisonment based upon a sentencing
range that subsequently was lowered by the Sentencing Commission. The
district court may grant a reduction if it is “consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In
this case, the applicable policy statement is U.S.S.G. § 1B1.10. United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Section 3582(c)(2) applies
only to retroactive guidelines amendments, as set forth in the section 1B1.10.
See U.S.S.G. §§ 1B1.10(a), (c); United States v. Drath, 89 F.3d 216, 217–18 (5th
Cir. 1996).
The Sentencing Commission has stated that, unless an amendment is
listed in section 1B1.10(c), it is not consistent with the policy statement in
section 1B1.10 and may not be relied upon to reduce a sentence pursuant to
section 3582(c)(2). See U.S.S.G. § 1B1.10 cmt. n.1(A); see also Drath, 89 F.3d at
218. Amendment 709 is not listed in section 1B1.10(c), therefore it has no
1
Galvez has not appealed his referenced conviction or sentence and has not
challenged either under 28 U.S.C. § 2255.
2
No. 08-10553
retroactive effect and provides the district court with no authority to reduce
Galvez’s sentence. See id.2
Therefore, the district court did not abuse its discretion in denying
Galvez’s section 3582(c) motion.
AFFIRMED.
2
As the district court correctly noted in denying Galvez’s motion for
reconsideration, because neither of Galvez’s said offenses involved cocaine base
or crack cocaine, Guidelines Amendment 706, effective November 1, 2007, cited
by Galvez in his motion for reconsideration, is inapplicable.
3