United States v. Tepezano-Avila

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50656
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE TEPEZANO-AVILA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:98-CR-301-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Tepezano-Avila (Tepezano), federal prisoner # 85628-
080, appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion, wherein he argued that Amendment 668 to the
Sentencing Guidelines should be applied to the calculation of his
offense level under U.S.S.G. § 2D1.1(a)(3).
Amendments to the Sentencing Guidelines may not be applied
retroactively upon a motion under § 3582(c)(2) unless they are
specifically set forth in U.S.S.G. § 1B1.10(c). See U.S.S.G.

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No. 05-50656
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§ 1B1.10(a), p.s. (Nov. 2005). Amendment 668 is not listed in
§ 1B1.10(c) and therefore may not be applied retroactively under
Tepezano’s motion. See United States v. Drath, 89 F.3d 216, 218
(5th Cir. 1996)(amendment not listed in § 1B1.10(c) “cannot be
given retroactive effect in the context of a § 3582(c)(2)
motion”). Accordingly, the district court did not abuse its
discretion when it denied Tepezano’s § 3582(c)(2) motion.
AFFIRMED.

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