* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 12 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.JESUS ANTONIO RUIZDOMINGUEZ,

Defendant - Appellant. No. 02-2169 D.C. No. CR-01-991-JP (D. New Mexico)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.2 -2- Defendant Jesus Antonio Ruiz-Dominguez (“Ruiz-Domin guez”) 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 unl awful 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 month s in prison in accordance with U.S.S.G. § 2L1.2, which mandated a sixteen-lev el increase in the base offense level if the defendant had previously been deported after an aggravated felony conviction. The United States Sentencing Co mmission 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 accordi ng to the amended version of § 2L1.2. A defendant is not entitled to a retroactive modifi cation 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 liste d 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 retroacti ve modification in his sentence3 -3- 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 n ot listed in USSG § 1B1.10, sentencing and reviewing courts may still give retr oactive effect to amendments that are clarifying as opposed to substantive” (quo tation omitted)). Amendment 632 altered the entire text of § 2L1.2 providing fo r a new graduated sentencing scheme. Further, Amendment 632 altered the Sentenc ing Commission’s preamendment 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 andis a substantive amendment, Ruiz-Dominguez is not entitled to a redu ction 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