
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1411                             REYNALDO RESTREPO-CONTRERAS,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Reynaldo Restrepo Contreras on brief pro se.            ___________________________            Guillermo Gil, United  States Attorney, Warren Vazquez,  Assistant            _____________                           ______________        United States Attorney, and Jose A. Quiles Espinosa, Senior Litigation                                    _______________________        Counsel, on brief for appellee.                                 ____________________                                   November 4, 1996                                 ____________________                 Per  Curiam.   Petitioner  Reynaldo  Restrepo Contreras,                 ___________            having persuaded the district court to reduce his sentence in            light   of  a   retroactive   amendment  to   the  sentencing            guidelines, complains  on appeal  that the court  should have            further  reduced his  sentence pursuant  to  a nonretroactive            amendment.  We disagree and therefore affirm.                 In  1990,  petitioner  was  convicted  of  two  offenses            involving cocaine base and sentenced to 360 months in prison.            This  court affirmed  the  judgment on  direct  appeal.   See                                                                      ___            United States  v. Restrepo-Contreras,  942 F.2d 96  (1st Cir.            _____________     __________________            1991), cert. denied, 502 U.S. 1066 (1992).  In February 1994,                   ____________            petitioner filed  a motion under  28 U.S.C.   2255  or in the            alternative under 18 U.S.C.   3582(c)(2), seeking a reduction            of sentence  because of  two amendments  to U.S.S.G.    2D1.1            that  had taken effect the  previous November.   One of these            (amendment 484)  defined the  term "mixture or  substance" to            exclude materials  that must  be separated from  a controlled            substance  before that  substance  could be  used; the  other            (amendment 487) defined the term cocaine base to mean "crack"            cocaine.  Amendment  484 was included in U.S.S.G.    1B1.10's            listing of amendments that  may be considered for retroactive            application; amendment 487 was not.                 In a  February 1996  ruling, the district  court granted            the motion in part.  Relying  on amendment 484, as well as on            a later amendment that retroactively reduced the maximum base                                         -2-            offense  level  (amendment 505),  the court  recalculated the            drug quantity, reconfigured the applicable offense level, and            reduced petitioner's  sentence to 235 months--the  low end of            the revised  sentencing range.  The  court declined, however,            to  invoke  amendment  487  due to  its  prospective  nature.            Contrary  to petitioner's  claim,  this latter  determination            entailed no error.                 "Resentencing" in the   3582(c)(2)  context is different            from that  which occurs  when an  appellate  court vacates  a            sentence  and  remands  for  resentencing.    In  the  latter            situation, the lower  court normally is to apply  the version            of  the guidelines  in  effect at  the  time of  resentencing            (absent ex post facto concerns).  See, e.g., United States v.                    _____________             ___  ____  _____________            Graham, 83 F.3d 1466, 1482 (D.C. Cir. 1996); United States v.            ______                                       _____________            Canon,  66  F.3d 1073,  1076  n.1 (9th  Cir.  1995).   For               _____            3582(c)(2) determinations, the guidelines dictate a different            approach.  Section 1B1.10(b) instructs the court to "consider            the sentence  that it would have imposed had the amendment(s)            to the guidelines listed in subsection  (c) [i.e., those that            have  been designated as  retroactive] been in  effect at the            time  the  defendant was  sentenced."    And an  accompanying            application note states:                 In  determining the  amended guideline  range under                 subsection (b), 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                                                                 ___                 otherguidelineapplicationdecisionsremainunaffected.                 __________________________________________________                                         -3-            U.S.S.G.   1B1.10 n.2  (emphasis added).  In  accordance with            these directions, the district court properly  refrained from            applying amendment 487.                 In the alternative, petitioner argues that amendment 487            is a "clarifying" rather  than "substantive" amendment  which            may properly  be invoked on  a retroactive basis,  whether in            connection with a   3582(c)(2) resentencing or by way of a               2255  proceeding.  See,  e.g., Isabel  v. United  States, 980                               ___   ____  ______     ______________            F.2d  60,  62 (1st  Cir. 1992).    Yet courts  have uniformly            characterized amendment  487 as  a substantive change.   See,                                                                     ___            e.g.,  United States v. Booker, 70 F.3d 488, 489-90 (7th Cir.            ____   _____________    ______            1995), cert. denied, 116 S. Ct. 1334 (1996); United States v.                   ____________                          _____________            Kissick, 69  F.3d 1048, 1053 (10th Cir.  1995); United States            _______                                         _____________            v. Samuels,  59 F.3d 526, 529 (5th Cir. 1995).  We agree with               _______            that  assessment, especially  since  the amendment  conflicts            with this court's  holding in United States v. Lopez-Gil, 965                                          _____________    _________            F.2d 1124,  1134-35 (1st Cir.) (on  rehearing), cert. denied,                                                            ____________            506 U.S. 981 (1992).  See, e.g., United States v. Rostoff, 53                                  ___  ____  _____________    _______            F.3d 398, 406  (1st Cir.  1995) (deeming an  amendment to  be            substantive  when  it  is  at odds  with  prevailing  circuit            precedent).                   Petitioner's further contention--that he  was improperly            denied the right to a hearing--is misplaced.  "A   3582(c)(2)            motion  is not  a  second opportunity  to present  mitigating            factors to the sentencing judge, nor is it a challenge to the                                         -4-            appropriateness of the original  sentence."  United States v.                                                         _____________            Whitebird, 55  F.3d 1007,  1011 (5th Cir.  1995) (finding  no            _________            right to  counsel in connection  therewith).  A  reduction of            sentence  thus  need  not  invariably  be  accompanied  by  a            hearing.  See, e.g., United States v. Dimeo, 28 F.3d 240, 241                      ___  ____  _____________    _____            n.3 (1st Cir. 1994); see also United States v. De Los Santos-                                 ________ _____________    ______________            Himitola,  924  F.2d 380,  382-83  (1st Cir.  1991).   Having            ________            examined  the issues that  petitioner wished to  argue to the            resentencing court, we find that each of them would have been            unavailing.                   We have considered  the remaining arguments  advanced by            petitioner on appeal and summarily  reject them as lacking in            merit.                  Affirmed.                 _________                                         -5-
