USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1411
REYNALDO RESTREPO-CONTRERAS,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Reynaldo Restrepo Contreras on brief pro se.
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Guillermo Gil, United States Attorney, Warren Vazquez, Assistant
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United States Attorney, and Jose A. Quiles Espinosa, Senior Litigation
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Counsel, on brief for appellee.
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November 4, 1996
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Per Curiam. Petitioner Reynaldo Restrepo Contreras,
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having persuaded the district court to reduce his sentence in
light of a retroactive amendment to the sentencing
guidelines, complains on appeal that the court should have
further reduced his sentence pursuant to a nonretroactive
amendment. We disagree and therefore affirm.
In 1990, petitioner was convicted of two offenses
involving cocaine base and sentenced to 360 months in prison.
This court affirmed the judgment on direct appeal. See
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United States v. Restrepo-Contreras, 942 F.2d 96 (1st Cir.
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1991), cert. denied, 502 U.S. 1066 (1992). In February 1994,
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petitioner filed a motion under 28 U.S.C. 2255 or in the
alternative under 18 U.S.C. 3582(c)(2), seeking a reduction
of sentence because of two amendments to U.S.S.G. 2D1.1
that had taken effect the previous November. One of these
(amendment 484) defined the term "mixture or substance" to
exclude materials that must be separated from a controlled
substance before that substance could be used; the other
(amendment 487) defined the term cocaine base to mean "crack"
cocaine. Amendment 484 was included in U.S.S.G. 1B1.10's
listing of amendments that may be considered for retroactive
application; amendment 487 was not.
In a February 1996 ruling, the district court granted
the motion in part. Relying on amendment 484, as well as on
a later amendment that retroactively reduced the maximum base
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offense level (amendment 505), the court recalculated the
drug quantity, reconfigured the applicable offense level, and
reduced petitioner's sentence to 235 months--the low end of
the revised sentencing range. The court declined, however,
to invoke amendment 487 due to its prospective nature.
Contrary to petitioner's claim, this latter determination
entailed no error.
"Resentencing" in the 3582(c)(2) context is different
from that which occurs when an appellate court vacates a
sentence and remands for resentencing. In the latter
situation, the lower court normally is to apply the version
of the guidelines in effect at the time of resentencing
(absent ex post facto concerns). See, e.g., United States v.
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Graham, 83 F.3d 1466, 1482 (D.C. Cir. 1996); United States v.
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Canon, 66 F.3d 1073, 1076 n.1 (9th Cir. 1995). For
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3582(c)(2) determinations, the guidelines dictate a different
approach. Section 1B1.10(b) instructs the court to "consider
the sentence that it would have imposed had the amendment(s)
to the guidelines listed in subsection (c) [i.e., those that
have been designated as retroactive] been in effect at the
time the defendant was sentenced." And an accompanying
application note states:
In determining the amended guideline range under
subsection (b), the court shall substitute only the
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amendments listed in subsection (c) for the
corresponding guideline provisions that were
applied when the defendant was sentenced. All
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otherguidelineapplicationdecisionsremainunaffected.
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U.S.S.G. 1B1.10 n.2 (emphasis added). In accordance with
these directions, the district court properly refrained from
applying amendment 487.
In the alternative, petitioner argues that amendment 487
is a "clarifying" rather than "substantive" amendment which
may properly be invoked on a retroactive basis, whether in
connection with a 3582(c)(2) resentencing or by way of a
2255 proceeding. See, e.g., Isabel v. United States, 980
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F.2d 60, 62 (1st Cir. 1992). Yet courts have uniformly
characterized amendment 487 as a substantive change. See,
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e.g., United States v. Booker, 70 F.3d 488, 489-90 (7th Cir.
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1995), cert. denied, 116 S. Ct. 1334 (1996); United States v.
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Kissick, 69 F.3d 1048, 1053 (10th Cir. 1995); United States
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v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995). We agree with
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that assessment, especially since the amendment conflicts
with this court's holding in United States v. Lopez-Gil, 965
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F.2d 1124, 1134-35 (1st Cir.) (on rehearing), cert. denied,
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506 U.S. 981 (1992). See, e.g., United States v. Rostoff, 53
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F.3d 398, 406 (1st Cir. 1995) (deeming an amendment to be
substantive when it is at odds with prevailing circuit
precedent).
Petitioner's further contention--that he was improperly
denied the right to a hearing--is misplaced. "A 3582(c)(2)
motion is not a second opportunity to present mitigating
factors to the sentencing judge, nor is it a challenge to the
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appropriateness of the original sentence." United States v.
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Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (finding no
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right to counsel in connection therewith). A reduction of
sentence thus need not invariably be accompanied by a
hearing. See, e.g., United States v. Dimeo, 28 F.3d 240, 241
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n.3 (1st Cir. 1994); see also United States v. De Los Santos-
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Himitola, 924 F.2d 380, 382-83 (1st Cir. 1991). Having
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examined the issues that petitioner wished to argue to the
resentencing court, we find that each of them would have been
unavailing.
We have considered the remaining arguments advanced by
petitioner on appeal and summarily reject them as lacking in
merit.
Affirmed.
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