United States v. Tobar , 73 F. App'x 471 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1214
UNITED STATES,
Appellee,
v.
CARLOS TOBAR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, II, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Carlos Tobar on brief pro se.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant United States Attorney, and Nelson Pérez-Sosa, Assistant
United States Attorney on brief for appellee.
September 4, 2003
Per Curiam. Pro se appellant Carlos Tobar appeals a district
court order that denied his motion for sentence modification
pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 3B1.2, as amended
by U.S. Sentencing Guidelines Manual, supp. to app. C, Amendment
635 (2001). Assuming that the ten-day appeal period in Fed. R.
App. P. 4(b)(1)(A) controls, see, e.g., United States v. Fair, 326
F.3d 1317, 1318 (11th Cir. 2003)(collecting cases), this appeal is
timely. See Fed. R. App. P. 4(c)(1) (mailbox rule applies to
inmate's notice of appeal), Fed. R. App. P. 26(a)(2)(weekends and
holidays are excluded from filing periods of less than 11 days,
unless stated in calendar days). Nevertheless, the appeal fails on
another ground.
Contrary to appellant's suggestion, Amendment 635 is not
retroactive. See U.S.S.G. § 1B1.10(c)(2002). Consequently, the
district court lacked the authority to reduce appellant's sentence
in light of this amendment. See id. § 1B1.10(a)("If none of the
amendments listed in subsection (c) is applicable, a reduction in
the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2)
... is not authorized."); see also, United States v. Jordan, 162
F.3d 1, 3 (1st Cir. 1998)(noting that, under 18 U.S.C. § 3582(c)(2),
district court "could reduce the sentence if and only if doing so
was 'consistent with applicable policy statements issued by the
Sentencing Commission'"); United States v. Lopez-Pineda, 55 F.3d
693, 697 n.3 (1st Cir. 1995)(guideline amendment not listed in
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U.S.S.G. § 1B1.10(c) may not be applied retroactively); DeSouza v.
United States, 995 F.2d 323, 324 & n. 1 (1st Cir. 1993)(per
curiam)(similar).
In view of the foregoing, the order denying appellant's 18
U.S.C. § 3582(c)(2) motion is summarily affirmed. See Loc. R.
27(c).
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