     Case: 11-20297     Document: 00511826710         Page: 1     Date Filed: 04/18/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 18, 2012
                                     No. 11-20297
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE BERNARDO NIETO, also known as Bono,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:92-CR-111-2


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Jose Bernardo Nieto, federal prisoner #58136-079, appeals the denial of
his 18 U.S.C. § 3582(c)(2) motion to reduce the life sentences he received
following his convictions for aiding and abetting the possession with the intent
to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). We review the denial of a § 3582(c)(2) motion for an abuse of
discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009) (citations
omitted).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-20297    Document: 00511826710      Page: 2   Date Filed: 04/18/2012

                                   No. 11-20297

      Nieto contends that his motion should have been granted, relying on
retroactive Amendment 505, which he asserts must be read in conjunction with
clarifying Amendment 493 and which, together, have the net effect of reducing
his sentence.   As he concedes, however, clarifying Amendment 493 is not
retroactive, and it thus could not be considered in connection with the instant
§ 3582(c)(2) motion. See U.S.S.G. § 1B1.10, comment. (n.1(A)); see also United
States v. Drath, 89 F.3d 216, 218 (5th Cir.1996).
      Although Amendment 505 is retroactive and a proper basis for the instant
motion, Amendment 505 does not have the effect of reducing Nieto’s sentence
because, even with the benefit of the amendment’s reduction to the base offense
level, his total offense level is 44, which corresponds to life imprisonment. The
district court therefore did not abuse its discretion in denying the § 3582(c)(2)
motion. See United States v. Gonzalez-Balderas, 105 F.3d 981, 983 (5th Cir.
1997). Nieto’s contention that his due process rights were violated by the district
court’s failure to state reasons for denying the motion is without merit. See
United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009).
      To the extent that Nieto attempts to otherwise challenge the sentencing
court’s calculation of the applicable Guidelines, those claims are not cognizable.
See id. To the extent that he asserts that the district court erred by not
considering the 18 U.S.C. § 3553(a) factors when determining whether to reduce
his sentence, his claim is unavailing. Because the district court determined that
Nieto was not eligible for a sentence modification, it was not required to consider
the § 3553(a) factors. See Dillon v. United States, 130 S. Ct. 2683, 2691 (2010).
      If his reply brief is liberally construed, Nieto additionally argues, for the
first time, that this court should consider the effect on his case of United States
v. Booker, 543 U.S. 220 (2005). This new argument will not be considered. See
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); United States v. Prince, 868
F.2d 1379, 1386 (5th Cir. 1989).
      The district court’s judgment is AFFIRMED.

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