     Case: 18-10617      Document: 00514741686         Page: 1    Date Filed: 11/29/2018




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

                                                                            FILED
                                    No. 18-10617                    November 29, 2018
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

GUADALUPE MACEDO,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-129-3


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Guadalupe Macedo, appeals the district court’s denial of his motion
under 18 U.S.C. § 3582(c)(2) to reduce his sentence for conspiracy to possess
with intent to distribute methamphetamine. Macedo sought a modification of
his sentence based on Amendment 794 to the Sentencing Guidelines. For the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10617       Document: 00514741686          Page: 2     Date Filed: 11/29/2018


                                       No. 18-10617

first time on appeal, Macedo argues that he is eligible for relief because he was
sentenced after Amendment 794 became effective. 1
       This court reviews de novo a district court’s authority to reduce a
sentence pursuant to § 3582(c)(2), United States v. Jones, 596 F.3d 273, 276
(5th Cir. 2010), as well as its denial of a motion to reconsider its authority,
United States v. Rabhan, 540 F.3d 344, 346 (5th Cir. 2008).
       Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence if he was sentenced to a term of imprisonment based on a sentencing
range that was subsequently lowered by the Sentencing Commission. United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). Macedo is correct that he
was sentenced after the effective date of Amendment 794. He is therefore
ineligible for a sentence reduction under § 3582(c)(2), and the district court did
not err in denying his motion.
       Accordingly, the judgment of the district court is AFFIRMED, and
Macedo’s motion for the appointment of counsel is DENIED.




       1 Macedo also argues that the district court erred in denying his motion because
Amendment 794, though not listed in U.S.S.G. § 1B1.10, is a clarifying amendment and
therefore can be applied retroactively. A clarifying amendment to the Sentencing Guidelines
can be applied retroactively on direct appeal, but it cannot be applied retroactively in a
§ 3582(c)(2) proceeding unless it is expressly listed in § 1B1.10(d). United States v. Drath, 89
F.3d 216, 217-18 (5th Cir. 1996).

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