UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HENRY AVILA, DEFENDANT-APPELLANT

10th Cir. | 1993-06-28
No. 93-1063
Before TACHA, BALDOCK and KELLY, Circuit Judges.
997 F.2d 767 United States Court of Appeals for the Tenth Circuit (1993) Positive Treatment
Cited by 4 cases

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Holding

The court held that a defendant cannot receive a sentence reduction based on a Sentencing Guidelines amendment not listed as covered in the policy statement.


Facts & Procedural History

Mr. Avila appealed the denial of his motion for a sentencing range reduction. He argued that a subsequent amendment to the Sentencing Guidelines shoul…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Mr. Avila appeals from the district court’s order denying his motion for sentencing range reduction. See 28 U.S.C. § 2255; 18 U.S.C. § 3582(c)(2). We affirm.

The Sentencing Guidelines now permit a three-level downward adjustment for acceptance of responsibility in certain circum stances. See U.S.S.G. § 3E1.1(b) (Nov. 1, 1992) & app. C, amend. 459 (eff. Nov. 1, 1992). Mr. Avila contends that, under the rule of lenity and 18 U.S.C. § 3582(c)(2), the district court should reduce his sentence one level, because at the time he was sentenced, only a two-level downward adjustment was in effect.

Section 3582(c)(2) empowers a district court to reduce a term of imprisonment when a sentencing range has subsequently been lowered by the Sentencing Commission. However, such power is tethered to the factors contained in § 3553(a), including any pertinent policy statement of the Sentencing Commission. 18 U.S.C. § 3553(a)(5). The policy statements accompanying U.S.S.G. § 1B1.10 provide that if an amendment is not listed as covered, a reduction in sentence based on the amendment would not be consistent with the policy statement. U.S.S.G. § 1B1.10(a), p.s. Amendment 459, on which Mr. Avila relies, is not covered by the policy statement. See U.S.S.G. § 1B1.10(d), p.s. Thus, the amendment to § 3E1.1 cannot be applied retroactively and it may not serve as a basis on which to reduce his sentence. See United States v. Rodriguez, 989 F. 2d 583, 587 (2d Cir.1993).

AFFIRMED.


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