IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20359 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ANGEL QUINTERO-HERRERA, also known as Miguel Angel Quintero-Guerrero,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-528-ALL - - - - - - - - - - October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Miguel Angel Quintero-Herrera, federal prisoner # 87580-079,

appeals the district court’s denied of his

(c)(2)

motion to reduce his sentence. Quintero-Herrera pleaded guilty

to illegal re-entry after having been convicted of an aggravated

felony in violation of

(a) & (b)(2), and in 2000

he was sentenced to 57 months of imprisonment and three years of

supervised release. In February 2002, Quintero-Herrera moved for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20359 -2-

a reduction of his sentence based on Amendment 632, effective

November 1, 2001, which amended U.S.S.G. § 2L1.2 to provide a

more graduated sentencing enhancement where the deportation

followed an aggravated felony conviction.

Quintero-Herrera argues on appeal that the district court

abused its discretion in denying his

(c)(2)

motion. He contends that U.S.S.G. § 1B1.10(b), p.s., required

the district court, in determining whether a

(c)(2) reduction was warranted, to consider the sentence it

would have imposed if the amendment to the guideline been in

effect at the time the court imposed sentence. Subsection (b)

provides (in pertinent part) that “the court should consider the

term of imprisonment that it would have imposed had the

amendment(s) to the guidelines listed in subsection (c) been in

effect at the time the defendant was sentenced.” § 1B1.10(b),

p.s. (emphasis added). Amendment 632 is not listed in subsection

(c). See § 1B1.10(c), p.s. Accordingly, the district court did

not abuse its discretion by not considering the sentence it would

have imposed if Amendment 632 had been in effect when Quintero-

Herrera was sentenced originally.

Quintero-Herrera also asserts that the district court could

have applied Amendment 632 retroactively, even though it is not

listed in U.S.S.G. § 1B1.10(c), p.s., (1) because it is a

clarifying amendment and (2) because his petition for writ of No. 02-20359 -3-

certiorari was pending in the Supreme Court when Amendment 632

was enacted.

Pursuant to

(c)(2), a sentencing court may

reduce a term of imprisonment “based on a sentencing range that

has been subsequently lowered by the Sentencing Commission

. . . , if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” Section 1B1.10,

p.s., which is entitled "Retroactivity of Amended Guideline Range

(Policy Statement)," provides that:

[w]here a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under

(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under

(c)(2) is not consistent with this policy statement and thus is not authorized.

§ 1B1.10(a), p.s.

Amendment 632 is not listed in § 1B1.10(c). See

§ 1B1.10(c), p.s. Thus, a § 3582(c)(2) sentence reduction based

on Amendment 632 would not be consistent with the Sentencing

Commission's policy statement and is not authorized. See United

States v. Drath,

(5th Cir. 1996). Amendment

632 therefore cannot be given retroactive effect in the context

of a § 3582(c)(2) motion regardless whether it is makes

substantive changes or is merely clarifying and even if Quintero- No. 02-20359 -4-

Herrera’s petition for writ of certiorari was pending in the

Supreme Court when Amendment 632 was enacted.

Because Amendment 632 is not listed in § 1B1.10(c), p.s.,

the district court lacked the authority to reduce Quintero-

Herrera’s sentence pursuant to

(c)(2). See

§ 1B1.10(a), p.s. The district court's judgment is AFFIRMED.