                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-2444

                   BARBARA BUSHWAY DESOUZA,

                    Petitioner, Appellant,

                              v.

                  UNITED STATES OF AMERICA,

                    Respondent, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Norman H. Stahl, U.S. District Judge]
                                                   

                                         

                            Before

                  Torruella, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

Barbara Bushway DeSouza on brief pro se.
                       
Jeffrey  R. Howard,  United  States Attorney,  and  Jean  B. Weld,
                                                                 
Assistant United  States Attorney,  on Motion for  Summary Disposition
for appellee.

                                         

                        June 14, 1993
                                         

          Per Curiam.   In  March 1992, Barbara  Desouza pled
                    

guilty  to attempt  and conspiracy  to distribute  cocaine in

violation of  21 U.S.C.   846.   At sentencing on  August 11,

1992,  she received  a  two-level reduction  in base  offense

level  for acceptance  of  responsibility  under  U.S.S.G.   

3E1.1.   She did not appeal her sentence.  Effective November

1, 1992, section  3E1.1 was amended  to permit an  additional

one-level reduction in base  offense level for defendants who

timely plead guilty so  that the government does not  have to

prepare for trial.  After the  amendment, Desouza moved under

28  U.S.C.    2255  to  vacate,  set  aside  or  correct  her

sentence, citing the  change in the guideline.   The district

court denied her motion, and she appealed.  We now affirm.

          In United States  v. Havener, 905 F.2d  3 (1st Cir.
                                      

1990),  we  considered whether  an  amendment  of the  career

offender guideline, U.S.S.G.   4B1.1, could  be retroactively

applied.  The amendment had added a sentence to section 4B1.1

which permitted  career offenders  a reduction of  two levels

for acceptance of responsibility which had not been permitted

under the preexisting guideline.  We found that the amendment

could not  be applied retroactively because  the new sentence

was "not  clarification; it  [was] change."   Id.  at 5.   We
                                                 

found  our  conclusion  to  be confirmed  by  the  Sentencing

Commission's  explanation of  the amendment;  its explanation

suggested that the  amendment was not intended to clarify the

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guideline, but to "authorize" an acceptance of responsibility

deduction in  determining  the offense  level  under  section

4B1.1.  In addition, U.S.S.G.   1B1.10(d) lists the guideline

amendments intended  to be  retroactive, but did  not include

the amendment  of section  4B1.1.  Accordingly,  we concluded

that  the   amended  section  4B1.1  could   not  be  applied

retroactively.  Id.
                   

          The  analysis  in  Havener  controls   here.    The
                                    

amendment  Desouza   relies  on  is  Amendment   459  to  the

Sentencing Guidelines.  See U.S.S.G. Manual (1992),  Appendix
                           

C, at  281-83.  A  review of  that "amendment" shows  that it

actually deleted the entire text of the preexisting guideline

and  replaced it  with the  present section  3E1.1.   The new

guideline retained the old two-level reduction for acceptance

of  responsibility, albeit  in modified  form.   In addition,

amended section  3E1.1  permitted an  entirely new  one-level

reduction in  offense level for defendants  who qualified for

the  two-level  reduction,  had an  offense  level  of  16 or

greater  before the  two-level reduction  was taken,  and had

assisted  authorities in  investigating or  prosecuting their

own  misconduct  by  taking  certain  steps  such  as  timely

notifying authorities of an intent to enter a guilty plea.

          There is no doubt that Amendment  459 substantively

changed the preexisting guideline, and did not merely clarify

it,  and  the  Sentencing  Commission's  explanation  of  the

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purpose  of  the amendment  confirms  that.   The  Sentencing

Commission stated that the amendment "provides  an additional

reduction  of   one  level  for   certain  defendants   whose

acceptance  of  responsibility  includes  assistance  to  the

government in  the investigation or prosecution  of their own

misconduct."  Id. at 283.  Although the Sentencing Commission
                 

can  designate  a  substantive  change  as  retroactive,  the

Sentencing Commission did not include this one in the list of

those qualifying  for  retroactive application.   U.S.S.G.   

lBl.10(d)  (listing  amendments designated  as retroactive).1

Accordingly, the  district court  had no authority  to modify

Desouza's  sentence even  if  it thought  that Desouza  would

under the  new version  qualify for the  additional one-level

reduction.  Havener, 905 F.2d at 6-7 (applying this rationale
                   

to deny retroactive application of an amendment to the career

offender  guideline); see  also United  States v.  Caceda, --
                                                         

F.2d  --,  1993  WL  98298  (2d  Cir.  1993)  (applying  this

rationale to deny retroactive application of Amendment 459).

          We conclude  that amended section 3E1.1  may not be

applied retroactively  to permit  Desouza an  additional one-

                    

1.  Where the Sentencing  Commission designates a substantive
change as  retroactive, the  court "may" reduce  a previously
imposed term  in accordance with the change  if the reduction
is consistent with general sentencing  factors and applicable
policy statements of the Sentencing  Commission.  18 U.S.C.  
3582(c)(2).  Unless  a request for  a reduction falls  within
this  rubric, or one of the other exceptions specified in the
statute, the court "may not modify a term of imprisonment . .
. ."  18 U.S.C.   3582(c).

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level reduction for timely pleading guilty.   The judgment of

the district court is affirmed.
                              

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