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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(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,

(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

(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

(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,

(5th Cir. 1995).