UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50625

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

THOMAS DRATH; DANIEL DRATH

Defendants - Appellants

Appeal from the United States District Court

for the Western District of Texas

July 12, 1996

Before KING, JONES, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

T homas and Daniel Drath moved separately under 18 U. S.C. §

3582(c)(2) for reduction of se ntence based on a post-sentencing

amendment to United States Sentencing Guidelines § 1B1.3. S ee

United States Sentencing Commission, Guidelines Manual , App. C at

314-22 (Nov. 1995) (hereinafter “U.S.S .G.”). The district court

held the amendment was not to be applied retroactively in the

context of a § 3582(c)(2) motion and, accordingly, denied both

motions. We affirm.

I.

Thomas Drath pleaded guilty to conspiracy to distribute and to

possess with intent to distribute a controlled substance in2

violation of 21 U.S.C. § 846 (cou nt one) and to making false

declarations on a federal income tax return in violation of 26

U.S.C. § 7206(1) (count nine). After granting a downward departure

on motion of the Government, the district court sentenced Thomas in

February of 1992 to concurrent terms of imprisonment of 97 months

for count one and 36 months for count nine.

Daniel Drath pleaded guilty to conspiracy to distribute and to

possess with intent to distribute a controlled substance in

violation of 21 U.S.C. § 846 (count one) and to failing to file a

federal income tax return in violation of 26 U.S.C. § 7203 (count

fifteen). After granting a downward departure on motion of the

Government, the district court sentenced Daniel in February of 1992

to concurrent terms of imprisonment of 78 months for count one and

12 months for count fifteen.

Neither Thomas nor Daniel appealed his conviction or sentence.

Instead, both filed 28 U.S.C. § 2255 motions to vacate, set aside,

or correct their sentences, seeking retroactive application of an

amendment to U.S.S.G. § 1B1.3 (i.e., Amendment 439), which became

effective on November 1, 1992. Finding the claims not cognizable

under § 2255, the district court deni ed the motions. Thomas and

Daniel subsequently filed emergency motions asking the district

court to consider their § 2255 motions as motions for modification

of sentence under § 3582(c)(2). The district court granted these

emergency motions, considered the merits of the § 358 2(c)(2)

motions, and concluded it lacked authority to apply Amendment 439

retroactively and to r educe the sentences. Thomas and Daniel3

appealed.

II.

Thomas and Daniel argue that becaus e Amendment 439 merely

clarifies U.S.S.G. § 1B1.3, as oppose d to substantively changing

the secti on, they are entitled to retroactive application of the

amendment. That “[Amendment 439] clarifies and more fully

illustrates the operation of [§ 1B1.3]” is true. U.S.S.G. § 1B1.3,

historical notes (1992 Amendments). S ee also United States v.

Maseratti

, 1 F.3d 330, 340 (5th Cir. 1993) (citing United States v.

Evbuomwan

, 992 F.2d 70, 74 n.1 (5th Cir. 1993)), certs. denied

, --

U.S.

__, 114 S.Ct. 1096, 1552 and 115 S.Ct. 282 (1994). Only on

direct appeal, however, have we considered the effect of such a

“clarifying” amendment not in effect at the time the offense was

committed. S ee Maseratti

, 1 F.3d at 340 (Amendment 439);

Evbuomwan

, 992 F.2d at 74 n.1 (same). S ee also U nited States v.

Gross

, 26 F.3d 552, 555 (5th Cir. 1994) (Amendment 500); United

States v. Anderson

, 5 F.3d 795, 802 (5th Cir. 1993) (proposed

version of Amendment 478), cert. denied

,

__ U.S.

__, 114 S.Ct. 1118

(1994); United States v. Peters

, 978 F.2d 166, 170 (5th Cir. 1992)

(Amendment 337); United States v. Nissen

, 928 U.S. 690, 694-95 (5th

Cir. 1991) (same); United States v. Aguilera-Zapata

, 901 F.2d 1209,

1213-14 (5th Cir. 1990) (Amendment 78). When a defendant

collaterally attacks his sentence by a § 3582(c)(2) motion based on

a post-sentencing Guidelines amendment, the rule is otherwise.

Pursuant to § 3582(c)(2), a sentencing court may reduce a term

o f imprisonment “based on a sentencing range that has been1 Former subsection (c) of U.S.S.G. § 1B1.10 was deleted and

former subsection (d) was redesignated subsection (c) by Amendment

504, effective November 1, 1994. U.S.S.G. App. C at 407-08.

4 subsequently lowered by the Sentencing Commission . . . , if such

a reduction is consistent with applicable policy statements issued

b y the Sentencing Commission

. ” 18 U.S.C. § 3582(c)(2) (emphasis

added). The applicable policy statement is U.S.S.G. § 1B1.10,

entitled “Retroactivity of Amended Guideline Range (Policy

Statement),” which provides:

Where a defendant is serving a term of imprisonment, and

the guideline range applicabl e to that defendant has

subsequently been lowered as a result of an amendment to the

Guidelines Manual listed in subsection (c) below, a reduction

in the defendant’s term of imprisonment is authorized under 18

U.S.C. § 3582(c)(2). I f none of the amendments listed in

subsection (c) is applicable, a reduction in the defendant’s

t erm of imprisonment under 18 U.S.C. § 3582(c)(2) is not

consistent with this policy statem ent and thus is not

authorized

.

U.S.S.G. § 1B1.10(a), p.s. (emphasis added). Application Note 1 to

U. S.S.G. § 1B1.10 makes it clear that “[e]ligibility for

consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an

amendment listed in subsection (c) [of U.S.S.G. § 1B1.10] that

lowers the guideline range.” I d

., comment. (n.1) (emphasis added).

Accordingly, co nstruing this interplay between § 3582(c)(2) and

U.S.S.G. § 1B1.10, we have held that “[§] 3582(c)(2) applies only

to amendments to the Guidelines that operate retroactively, as set

forth in the Guidelines policy statement, U.S.S. G. § 1B1.10(d).” 1

United States v. Whitebird

, 55 F.3d 1007, 1009 (5th Cir. 1995)

(citing United States v. Miller

, 903 F.2d 341, 349 (5th Cir.

199 0)). S ee also United States v. Pardue

, 36 F.3d 429, 430 (5th5

Cir. 1994), cert. denied

,

__ U.S.

__, 115 S.Ct. 1969 (1995). Thus,

if an amendment is not specifically listed in U.S.S.G. § 1B1.10(c),

a reduction of sentence under § 3582(c)(2) is not consistent with

the Sentencing Commission’s policy st atement. Because Amendment

439 is not listed in U.S.S.G. § 1B1.10(c), that amendment cannot be

given retroactive effect in the context of a § 3582(c)(2) motion,

and thus Thomas and Daniel are not entitled to a reduction in their

sentences.

III.

The decision to reduce a sentence pursuant to § 3582(c)(2) is

within the sound discretion of the district court. Whitebird , 55

F.3d at 1009 (citing United States v. Shaw

, 30 F.3d 26, 28 (5th

Cir. 1994)). Thus, we review this determination for abuse of

discretion. I d

. (citing Pardue

, 36 F.3d at 430). Based on the

foregoing discussion, we cannot say the district court committed

such abuse. Consequently, the district court’s orders denying the

§ 3582(c)(2) motions of Thomas and Daniel Drath are AFFIRMED.