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United States v. Gonzalez-Bautista, 02-50314 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-50314 Visitors: 24
Filed: Oct. 29, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50314 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GUSTAVO GONZALEZ-BAUTISTA, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-318-ALL-H - October 28, 2002 Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Gustavo Gonzalez-Bautista, federal prisoner number 15950- 051, appeals the denial of his motion for modificatio
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-50314
                         Summary Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

GUSTAVO GONZALEZ-BAUTISTA,

                                          Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                     USDC No. EP-00-CR-318-ALL-H
                         --------------------
                           October 28, 2002
Before   BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Gustavo Gonzalez-Bautista, federal prisoner number 15950-

051, appeals the denial of his motion for modification of

sentence pursuant to 18 U.S.C. § 3582(c)(2).   He argues that

Amendment 632 is a clarification of U.S.S.G. § 2L1.2 and should

be applied retroactively.    Amendments to the Guidelines may not

be applied retroactively upon a motion under 18 U.S.C.

§ 3582(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

     *
        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that this opinion should not be published and is not precedent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. 02-50314
                                 -2-

632 is not listed in U.S.S.G. § 1B1.10(c) and therefore may not

be applied retroactively.   See U.S.S.G. § 1B1.10(c), p.s. (Nov.

2001).

     Gonzalez also contests his conviction.   He alleges that he

is a United States citizen and, therefore, not properly the

subject of an illegal reentry conviction.   Such a claim is not

cognizable in an 18 U.S.C. § 3582(c)(2) motion.   The district

court did not abuse its discretion in denying Gonzalez’s motion.

AFFIRMED.

Source:  CourtListener

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