                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 18 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 02-2113
                                                   (D.C. Nos. CR-01-326-JC
    VICTOR DANIEL                                             &
    CHAVARRIA-AHUMADA,                              CIV-02-267-LH/KBM)
                                                          (D. N.M.)
                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.




         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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
         Defendant Victor Daniel Chavarria-Ahumada appeals from the denial of his

motion to modify sentence under 18 U.S.C. § 3582(c)(2). We affirm.

         Defendant pleaded guilty to reentering the United States illegally as a

deported alien previously convicted of an aggravated felony, in violation of

8 U.S.C. § 1326(a)(1), (2), and (b)(2). He entered into a plea agreement which

did not specify the sentence or sentencing range to be imposed. The district court

determined defendant’s sentence by applying the then-existing version of USSG

§ 2L1.2(b)(1)(A), which called for a sixteen-level increase for a defendant

previously convicted of an aggravated felony. Based on a criminal history

category of IV and a total offense level of twenty-one, the district court sentenced

defendant to fifty-seven months’ imprisonment, at the low end of the guideline

range.

         Effective November 1, 2001, the Sentencing Commission promulgated

Guidelines Amendment 632, which amended § 2L1.2(b)’s aggravated-felony

enhancement to provide for an increase of eight to sixteen levels according to the

seriousness of the earlier aggravated felony.     See USSG Supp. to App. C

at 222-25 (Nov. 1, 2001); USSG § 2L1.2(b) (Nov. 1, 2001). In response,

defendant filed a pro se motion to modify his sentence under 18 U.S.C.

§ 3582(c)(2), arguing that Amendment 632 had lowered the authorized term of

imprisonment. The district court denied the motion and defendant appealed.


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      The government argues that defendant’s plea agreement waives his right to

file a motion to modify sentence under § 3582(c)(2); that Amendment 632 may

not be applied retroactively to defendant in any event; and that defendant’s

sentence would not be different even if Amendment 632 were applied to him.

      We reject the government’s argument that defendant waived his right to file

a motion to modify his sentence under § 3582(c)(2). In his plea agreement,

defendant waived his right to file an appeal or a collateral attack challenging his

sentence:

      The defendant is aware that 18 U.S.C. § 3742 affords a defendant the
      right to appeal the sentence imposed. Acknowledging that, the
      defendant knowingly waives the right to appeal any sentence within
      the guideline range applicable to the statute of conviction as
      determined by the Court after resolution of any objections by either
      party to the presentence report to be prepared in this case, and the
      defendant specifically agrees not to appeal the determination of the
      Court in resolving any contested sentencing factor. In other words,
      the defendant waives the right to appeal the sentence imposed in this
      case except to the extent, if any, that the Court may depart upwards
      from the applicable sentencing guideline range as determined by the
      Court. The defendant also waives the right to challenge the sentence
      or the manner in which it was determined in any collateral attack,
      including, but not limited to, a motion brought under 28 U.S.C.
      § 2255, except to the extent, if any, that the Court may depart
      upwards from the applicable sentencing guideline range.

No. 01-CR-326-JC, Doc. 12, at 5-6. Because “the plea agreement did not

explicitly state that Defendant was waiving his right to bring a later motion to

modify his sentence under 18 U.S.C. § 3582(c)(2). . . ., we do not believe that

motions under 18 U.S.C. § 3582(c)(2) are clearly understood to fall within

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a prohibition on ‘any collateral attack.’”    United States v. Chavez-Salais   ,

No. 02-2138, 2003 WL 21750786, at *2 (10th Cir. July 29, 2003). The scope of a

defendant’s waiver of rights can also be made known to him by the district court

at the sentencing hearing.    Id. at *3. However, the government does not contend

that defendant was told at the sentencing hearing that, under his plea agreement,

he was waiving his right to file a motion to modify sentence. Therefore,

defendant did not waive his right to file a motion under § 3582(c)(2) under the

language of his plea agreement.

       We review de novo a district court’s interpretation of the sentencing

guidelines. United States v. Kissick , 69 F.3d 1048, 1051 (10th Cir. 1995). We

have elsewhere addressed the issue presented and concluded that Amendment 632

may not be applied retroactively to reduce a defendant’s sentence.       See United

States v. Torres-Aquino , 334 F.3d 939, 940-41 (10th Cir. 2003). The district

court properly denied the motion to modify sentence. We need not address the

government’s other arguments for affirming.

       We note that the district court should not have docketed this § 3582(c)(2)

motion as a civil proceeding. Such an approach is apt to lead to

misunderstandings by the parties as to whether criminal or civil procedural rules

apply and to unnecessarily complicate the disposition of the motion.       See United

States v. Espinosa-Talamantes     , 319 F.3d 1245, 1246-47 (10th Cir. 2003).


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      The district court’s judgment is AFFIRMED. The mandate shall

issue forthwith.


                                               Entered for the Court



                                               Terrence L. O’Brien
                                               Circuit Judge




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