UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4695

CODELL CHAVIS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4696

KENNETH FITZGERALD,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-92-303-G)

Submitted: August 26, 1997

Decided: October 10, 1997

Before HALL and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina; Walter T. Johnson, Jr., Greensboro, North Carolina,
for Appellants. Walter C. Holton, Jr., United States Attorney, Douglas
Cannon, Assistant United States Attorney, Mark D. Boynton, Third-
year Law Student, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In June 1993, Codell Chavis and Kenneth Fitzgerald were con-
victed together of conspiracy to possess cocaine with intent to distrib-
ute, 21 U.S.C. § 846 (1994). Both received sentences of 235 months.
The following year, Amendment 505 to the sentencing guidelines
reduced the offense level applicable to their offense and the Sentenc-
ing Commission made the change retroactive. In 1996, after Fitzger-
ald moved for a sentence reduction under 18 U.S.C.A.§ 3582(c)(2)
(West Supp. 1997), he and Chavis were resentenced together. The
district court determined that their new guideline range was 188-235
months. Chavis and Fitzgerald also requested a downward departure
under Application Note 14 to USSG § 2D1.1, 1 which was added by
Amendment 485 after their original sentencing.2 The amendment per-
mits a limited departure for defendants with minor roles in high-
volume drug offenses if certain conditions are satisfied. However,
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual (Nov. 1995). Appellants were
resentenced in August 1996.
2 Amendment 485 went into effect on November 1, 1993. Initially, the
amendment added Application Note 16 to USSG § 2D1.1. When Amend-
ment 518 deleted two application notes, Application Note 16 became
Application Note 14.

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Amendment 485 is not listed in USSG § 1B1.10(c), p.s. as a retroac-
tive amendment. The district court held that it lacked the authority to
depart because the amendment was not retroactive, and imposed sen-
tences of 188 months. The court expressed a willingness to depart if
that option were available. Chavis and Fitzgerald appeal their sen-
tences, contending that Amendment 485 is a clarifying amendment
which can be applied retroactively and that the district court erred in
finding that it lacked the authority to depart. We affirm.

Pursuant to § 3582(c)(2), the district court may reduce a sentence
previously imposed when the sentencing range is later lowered by the
Sentencing Commission "if such a reduction is consistent with the
applicable policy statements issued by the Sentencing Commission."
The applicable policy statement is USSG § 1B1.10, which permits a
sentence reduction when the defendant's guideline range has been
lowered as a result of an amendment listed in subsection (c), but not
otherwise. The commentary further states: "In determining the
amended guideline range . . . the court shall substitute only the
amendments listed in subsection (c) for the corresponding guideline
provisions that were applied when the defendant was sentenced. All
other guideline application decisions remain unaffected." USSG
§ 1B1.10, comment. (n.2). Thus, the district court may consider a
reduction in sentence pursuant to a collateral motion under
§ 3582(c)(2) only when an amendment is specifically made retroac-
tive and is listed in USSG § 1B1.10(c). See United States v. Drath,
89 F.3d 216, 217-18 (5th Cir. 1996).

Appellants correctly point out that amendments which merely clar-
ify the operation of existing guidelines, rather than introducing sub-
stantive changes, may be given retroactive effect. See United States
v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3779 (U.S. May 20, 1996) (No. 95-7022). How-
ever, this rule applies in two circumstances only. First, when an
amendment takes effect before a defendant is sentenced and an earlier
version of the guidelines is used for sentencing. Id.; USSG
§ 1B1.11(b)(2). Second, when a clarifying amendment takes effect
after sentencing while a defendant's direct appeal is pending. See
Capers, 61 F.3d at 1109. Neither circumstance is present in these
cases.

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We therefore affirm the sentences imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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