United States v. Figueroa-Banuellos ( 2005 )


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  •                                                                          F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS                         August 23, 2005
    
                                     TENTH CIRCUIT                       PATRICK FISHER
                                                                                   Clerk
    
    
    
     UNITED STATES OF AMERICA,
    
              Plaintiff-Appellee,
    
     v.                                                     No. 04-2336
                                                     (D.C. No. CR-03-1662 JC)
     ARTURO FIGUEROA-BANUELLOS,                            (New Mexico)
     also known as Gonzaga Gonzalez-
     Andrade,
    
              Defendant-Appellant.
    
    
    
    
                              ORDER AND JUDGMENT *
    
    
    Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
    
    
          Arturo Figueroa-Banuellos, a federal prisoner proceeding pro se, pled
    
    guilty to one count of illegal reentry after deportation subsequent to a conviction
    
    for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and one
    
          *
           After examining appellant’s brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G). The case is therefore submitted without oral argument. This order and
    judgment is not binding precedent, except under the doctrines of law of the case,
    res judicata, or collateral estoppel. The court generally disfavors the citation of
    orders and judgments; nevertheless, an order and judgment may be cited under the
    terms and conditions of 10th Cir. R. 36.3.
    count of being an illegal alien in possession of a firearm in violation of 18 U.S.C.
    
    §§ 922(g)(5)(A) and 924(a)(2). The district court sentenced him to eighty-four
    
    months in prison. Mr. Figueroa-Banuellos filed a direct appeal asserting
    
    ineffective assistance of counsel, which we dismissed on the basis that the issue
    
    must be raised in a collateral challenge. United States v. Figueroa-Banuellos, No.
    
    04-2018 (10th Cir. Oct. 19, 2004). Mr. Figueroa-Banuellos then filed pro se a
    
    motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). He
    
    appeals the district court’s denial of that motion. We affirm.
    
          Mr. Figueroa-Banuellos claims that Amendment 632 of the United States
    
    Sentencing Guidelines, which amended guidelines § 2L1.2, lowered the
    
    sentencing range applicable to his conviction, and that his sentence should be
    
    reduced accordingly. Specifically, he challenges the application to him of
    
    U.S.S.G. § 2L1.2(b)(1)(A), which provides for a sixteen-level increase if the
    
    defendant had previously been deported or unlawfully remained in the United
    
    States following a conviction for a drug trafficking felony for which the sentence
    
    imposed exceeded thirteen months, or for a firearm offense. Mr. Figueroa-
    
    Banuellos argues that under Amendment 632 he qualified for a lesser four-level
    
    increase and thus his sentence should be modified to reflect the retroactive
    
    application of the amendment. The district court denied Mr. Figueroa-Banuellos’
    
    § 3582(c)(2) motion, explaining that Amendment 632 was adopted on November
    
    
                                             -2-
    1, 2001 and Mr. Figueroa-Banuellos was sentenced on January 21, 2004, thus his
    
    motion does not implicate the retroactivity provisions of § 3582(c)(2).
    
          “We review de novo the district court’s interpretation of a statute or the
    
    sentencing guidelines.” United States v. Smartt, 
    129 F.3d 539
    , 540 (10th Cir.
    
    1997) (quoting United States v. Acosta-Olivas, 
    71 F.3d 375
    , 377 (10th Cir.
    
    1995)). Because Mr. Figueroa-Banuellos’ motion for a sentence modification is
    
    not a direct appeal or a collateral attack under 28 U.S.C. § 2255, “the viability of
    
    his motion depends entirely on 18 U.S.C. § 3582(c).” Id. (quoting United States
    
    v. Trujeque, 
    100 F.3d 869
    , 870 (10th Cir. 1996)). According to § 3582(c), a court
    
    may not modify a term of imprisonment once it has been imposed except 1) upon
    
    a motion of the Director of the Bureau of Prisons, 2) if such modification is
    
    expressly permitted by statute or Rule 35 of the Federal Rules of Criminal
    
    Procedure, or 3) if a sentencing range has subsequently been lowered by the
    
    Sentencing Commission. 18 U.S.C. § 3582(c).
    
          Mr. Figueroa-Banuellos seeks a modification under the third exception,
    
    arguing that his sentencing range was subsequently lowered by Amendment 632.
    
    We agree with the district court’s conclusion that even if Amendment 632 applies
    
    to Mr. Figueroa-Banuellos, he does not qualify for a sentence modification
    
    because the sentencing range used in his conviction was not subsequently lowered
    
    by the Sentencing Commission. Amendment 632 was in effect at the time of Mr.
    
    
                                              -3-
    Figueroa-Banuellos’ sentencing and he is therefore not qualified for a sentence
    
    modification under § 3582(c)(2).
    
          In any event, the presentence report (PSR) notes that in addition to a prior
    
    conviction for which Mr. Figueroa-Banuellos’ sentence did not exceed thirteen
    
    months, he had also been convicted of drug trafficking offenses for which he
    
    received a sentence of twelve years imprisonment, with ten years suspended.
    
    Under the 2002 guideline manual, which was used in the PSR, he clearly qualified
    
    for a sixteen-level increase in his sentence pursuant to § 2L1.2(b)(1)(A).
    
          We have carefully reviewed the record of these proceedings and the order
    
    of the district court. For the foregoing reasons we AFFIRM the district court’s
    
    decision denying a sentence reduction under § 3582.
    
                                           SUBMITTED FOR THE COURT
    
                                           Stephanie K. Seymour
                                           Circuit Judge
    
    
    
    
                                             -4-
    

Document Info

DocketNumber: 04-2336

Filed Date: 8/23/2005

Precedential Status: Non-Precedential

Modified Date: 12/21/2014