                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 12 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 02-2169
v.
                                                  D.C. No. CR-01-991-JP
                                                    (D. New Mexico)
JESUS ANTONIO RUIZ-
DOMINGUEZ,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court 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       This order and judgment is not binding precedent, except under the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.
      Defendant Jesus Antonio Ruiz-Dominguez (“Ruiz-Dominguez”) appeals the

district court’s denial of his motion to modify his sentence pursuant to 18 U.S.C.

§ 3582(c)(2). Ruiz-Dominguez pleaded guilty to unlawful reentry of a deported

alien in violation of 8 U.S.C. § 1326(a) & (b)(2). On October 30, 2001, the

district court sentenced Ruiz-Dominguez to 80 months in prison in accordance

with U.S.S.G. § 2L1.2, which mandated a sixteen-level increase in the base

offense level if the defendant had previously been deported after an aggravated

felony conviction. The United States Sentencing Commission amended § 2L1.2

on November 1, 2001 by adopting Amendment 632. The amended version of §

2L1.2 provides for graduated increases in a defendant’s base offense level of

four, eight, twelve, or sixteen levels depending on the type of misdemeanor or

felony for which the defendant had previously been convicted. Ruiz-Dominguez

argues that his sentence should be modified according to the amended version of

§ 2L1.2.

      A defendant is not entitled to a retroactive modification in his term of

imprisonment under 18 U.S.C. § 3582(c)(2) based on an amendment to the

sentencing guidelines unless the amendment is listed in U.S.S.G. § 1B1.10(c).

See U.S.S.G. § 1B1.10(a); United States v. Avila, 997 F.2d 767, 768 (10th Cir.

1993). Amendment 632 is not listed in § 1B1.10(c). Ruiz-Dominguez also

argues, however, that he is entitled to a retroactive modification in his sentence


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because Amendment 632 was merely a clarification of § 2L1.2 and was not a

substantive amendment. See United States v. Kissick, 69 F.3d 1048, 1052 (10th

Cir. 1995) (holding that “even if an amendment is not listed in USSG § 1B1.10,

sentencing and reviewing courts may still give retroactive effect to amendments

that are clarifying as opposed to substantive” (quotation omitted)). Amendment

632 altered the entire text of § 2L1.2 providing for a new graduated sentencing

scheme. Further, Amendment 632 altered the Sentencing Commission’s pre-

amendment interpretation of § 2L1.2. Accordingly, Amendment 632 is a

substantive amendment. See Kissick, 69 F.3d at 1052-53.

      Because Amendment 632 is not listed in § 1B1.10 and is a substantive

amendment, Ruiz-Dominguez is not entitled to a reduction in his sentence. The

district court’s denial of Ruiz-Dominguez’s motion to modify his sentence under

18 U.S.C. § 3582(c)(2) is affirmed.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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