U.S. v. Avila, 93-1063
| Decision Date | 28 June 1993 |
| Docket Number | No. 93-1063,93-1063 |
| Citation | 997 F.2d 767 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Henry AVILA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Henry Avila, pro se.
James R. Allison, Interim U.S. Atty., Joseph T. Urbaniak, Jr. and John M. Hutchins, Asst. U.S. Attys., Mountain States Drug Task Force, Denver, CO, for plaintiff-appellee.
Before TACHA, BALDOCK and KELLY, Circuit Judges. *
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 circumstances. 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.
* After examining the briefs and 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); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument.
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