                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           FEB 7 2003
                          FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 02-2140
                                                 D.C. Nos. CR-01-994-BB &
 DOMINGO BARRAZA-RIOS, also                        CIV-02-383-BB/KBM
 known as Domingo Parraza-Rios, also                  (D. New Mexico)
 known as Domingo BarrazaRios,

              Defendant - Appellant.


                           ORDER AND JUDGMENT           *




Before PORFILIO , ANDERSON , Circuit Judges, and            BRORBY , Senior Circuit
Judge.



      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       This order and judgment is not binding precedent, except under the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.
      Domingo Barraza-Rios appeals pro se from an order denying a motion to

modify his sentence under 18 U.S.C. § 3582(c)(2). We affirm. 1

      Mr. Barraza-Rios pled guilty to reentry of a deported alien previously convicted

of an aggravated felony for which he was sentenced to a term of 78 months. In his

subsequently filed § 3582(c)(2) motion, Mr. Barraza-Rios argued that the sentencing

range applicable to his conviction had been lowered retroactively by an amendment

to the Sentencing Guidelines. The district court concluded that the amendment,

Amendment 632, did not apply retroactively and denied relief.

      Under § 3582(c)(2), a district court may reduce a term of imprisonment when

the sentencing range has been subsequently lowered by the Sentencing Commission.

The Commission has promulgated USSG § 1B1.10 which lists specific amendments

that sentencing courts may apply retroactively to reduce a defendant’s sentence.

Amendment 632 is not a listed amendment. However, even if an amendment is not

listed, sentencing courts may still give retroactive effect to amendments which are

“clarifying” as opposed to “substantive.” United States v. Kissick, 69 F.3d 1048,

1052 (10th Cir. 1995). The factors to be reviewed include “the Commission’s

characterization of the amendment, whether the amendment changes the text of the

guidelines or merely the accompanying commentary, and whether the amendment


       1
        The government argues that Mr. Barraza-Rios waived his right to appeal
his sentence in the plea agreement. However, the record before this court is not
sufficient to determine the validity of the waiver.

                                         -2-
alters the controlling pre-amendment interpretation of the guideline at issue.” Id.

      A review of these factors indicates that the amendment is not merely clarifying.

The amendment completely rewrote § 2L1.2. The accompanying commentary states

that the change was made in response to concerns by judges, probation officers, and

defense attorneys that the former guideline resulted in disproportionate penalties.

USSG App. C. This certainly may not be considered merely clarifying.

      Moreover, even if the amendment were to be applied retroactively,

Mr. Barraza-Rios would not benefit. Under the new § 2L1.2 he would receive the

same 16-level increase because his prior aggravated felony was a drug trafficking

offense for which he received a sentence of more than 13 months. See USSG

§ 2L1.2(b)(1)(A).

      Accordingly, the order of the district court is AFFIRMED. The mandate shall

issue forthwith.



                                               Entered for the Court


                                               Stephen H. Anderson
                                               Circuit Judge




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