                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         August 23, 2005

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 04-2336
                                                 (D.C. No. CR-03-1662 JC)
 ARTURO FIGUEROA-BANUELLOS,                            (New Mexico)
 also known as Gonzaga Gonzalez-
 Andrade,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Arturo Figueroa-Banuellos, a federal prisoner proceeding pro se, pled

guilty to one count of illegal reentry after deportation subsequent to a conviction

for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and one

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
count of being an illegal alien in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(5)(A) and 924(a)(2). The district court sentenced him to eighty-four

months in prison. Mr. Figueroa-Banuellos filed a direct appeal asserting

ineffective assistance of counsel, which we dismissed on the basis that the issue

must be raised in a collateral challenge. United States v. Figueroa-Banuellos, No.

04-2018 (10th Cir. Oct. 19, 2004). Mr. Figueroa-Banuellos then filed pro se a

motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). He

appeals the district court’s denial of that motion. We affirm.

      Mr. Figueroa-Banuellos claims that Amendment 632 of the United States

Sentencing Guidelines, which amended guidelines § 2L1.2, lowered the

sentencing range applicable to his conviction, and that his sentence should be

reduced accordingly. Specifically, he challenges the application to him of

U.S.S.G. § 2L1.2(b)(1)(A), which provides for a sixteen-level increase if the

defendant had previously been deported or unlawfully remained in the United

States following a conviction for a drug trafficking felony for which the sentence

imposed exceeded thirteen months, or for a firearm offense. Mr. Figueroa-

Banuellos argues that under Amendment 632 he qualified for a lesser four-level

increase and thus his sentence should be modified to reflect the retroactive

application of the amendment. The district court denied Mr. Figueroa-Banuellos’

§ 3582(c)(2) motion, explaining that Amendment 632 was adopted on November


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1, 2001 and Mr. Figueroa-Banuellos was sentenced on January 21, 2004, thus his

motion does not implicate the retroactivity provisions of § 3582(c)(2).

      “We review de novo the district court’s interpretation of a statute or the

sentencing guidelines.” United States v. Smartt, 129 F.3d 539, 540 (10th Cir.

1997) (quoting United States v. Acosta-Olivas, 71 F.3d 375, 377 (10th Cir.

1995)). Because Mr. Figueroa-Banuellos’ motion for a sentence modification is

not a direct appeal or a collateral attack under 28 U.S.C. § 2255, “the viability of

his motion depends entirely on 18 U.S.C. § 3582(c).” Id. (quoting United States

v. Trujeque, 100 F.3d 869, 870 (10th Cir. 1996)). According to § 3582(c), a court

may not modify a term of imprisonment once it has been imposed except 1) upon

a motion of the Director of the Bureau of Prisons, 2) if such modification is

expressly permitted by statute or Rule 35 of the Federal Rules of Criminal

Procedure, or 3) if a sentencing range has subsequently been lowered by the

Sentencing Commission. 18 U.S.C. § 3582(c).

      Mr. Figueroa-Banuellos seeks a modification under the third exception,

arguing that his sentencing range was subsequently lowered by Amendment 632.

We agree with the district court’s conclusion that even if Amendment 632 applies

to Mr. Figueroa-Banuellos, he does not qualify for a sentence modification

because the sentencing range used in his conviction was not subsequently lowered

by the Sentencing Commission. Amendment 632 was in effect at the time of Mr.


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Figueroa-Banuellos’ sentencing and he is therefore not qualified for a sentence

modification under § 3582(c)(2).

      In any event, the presentence report (PSR) notes that in addition to a prior

conviction for which Mr. Figueroa-Banuellos’ sentence did not exceed thirteen

months, he had also been convicted of drug trafficking offenses for which he

received a sentence of twelve years imprisonment, with ten years suspended.

Under the 2002 guideline manual, which was used in the PSR, he clearly qualified

for a sixteen-level increase in his sentence pursuant to § 2L1.2(b)(1)(A).

      We have carefully reviewed the record of these proceedings and the order

of the district court. For the foregoing reasons we AFFIRM the district court’s

decision denying a sentence reduction under § 3582.

                                       SUBMITTED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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