                      UNITED STATES COURT OF APPEALS
Filed 1/2/97
                                     TENTH CIRCUIT




 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 96-6167
                                                      (D.C. No. CIV-95-441-A)
          v.                                             (W.D. Oklahoma)

 PABLO LUIS GOMEZ ANGARRA,

               Defendant-Appellant.




                             ORDER AND JUDGMENT*


Before ANDERSON, LOGAN and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause 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         This order and judgment is not binding precedent, except under the doctrines of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. This 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 Pablo Louis Gomez Angarra appeals the denial of his 18 U.S.C.

§ 3582(c)(2) motion for reduction in sentence. In this third effort to obtain a lower

sentence,1 defendant seeks the benefit of the “safety valve” provision of USSG

§ 5C1.2(1)-(5) providing for sentences below the mandatory statutory minimum in certain

circumstances. Defendant is now serving the mandatory minimum term but raises various

arguments why he qualifies for further relief. The government erroneously conceded that

§ 5C1.2, which became effective approximately two years after defendant’s original

sentencing, may be applied retroactively. The district court did not discuss retroactivity,

but concluded that defendant did not meet the § 5C1.2(5) criteria of truthful disclosure.

       A defendant may seek modification of a term of imprisonment when the Sentenc-

ing Commission later lowers the applicable sentencing range. 18 U.S.C. § 3582(c). A

reduction in sentence, however, must be “consistent with applicable policy statements

issued by the Sentencing Commission.” Id. § 3582(c)(2). The policy statement at

§ 1B1.10(c) does not include Amendment 509, which added § 5C1.2, among the amend-

ments to be applied retroactively. Therefore, we have held that § 5C1.2 may not be

applied retroactively to a sentence entered before its effective date. United States v.

Torres, 99 F.3d 360, 362-63 (10th Cir. 1996). Torres controls the determination of this

appeal.


       1
        Defendant received some sentencing relief pursuant to his first 28 U.S.C. § 2255
motion. I R. doc. 47. We affirmed the denial of a second § 2255 motion. United States
v. Gomez, No. 96-6225 (10th Cir. filed March 1, 1996).

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AFFIRMED.

The mandate shall issue forthwith.

                                           Entered for the Court

                                           James K. Logan
                                           Circuit Judge




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