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

### JUL 2 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JESUS TORRES-AQUINO, also known as Tomas Perez-Ruiz, also known as Simon Sanchez,

Defendant-Appellant. No. 02-2075

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. Nos. CR-00-1021-JC & CIV-02-121-JC)

Submitted on the briefs: Jesus Torres-Aquino, Pro Se. David C. Iglesias, United States Attorney, Laura Fa shing, Assistant U.S. Attorney, Albuquerque, New Mexico, for Plaintiff-Ap pellee.

Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.

O’BRIEN , Circuit Judge.1 After examining the briefs and appellate record, th is panel 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- This case presents the question whether Amendment 6 32 to the sentencing guidelines can be applied retroactively under 18 U. S.C. § 3582(c)(2) to reduce a defendant’s previously imposed sentence. We hold it cannot. 1 Defendant pleaded guilty to reentering the United S tates illegally as a deported alien previously convicted of an aggravate d felony, in violation of 8 U.S.C. § 1326(a)(1), (2), and (b)(2). He did notenter into a plea agreement. The district court determined defendant’s sentence by applying the then-existing version of USSG § 2L1.2(b)(1)(A), which called for a sixteen-level increase for a defendant previously convicted of an aggravated f elony. Based on a total offense level of twenty-one, the district court sen tenced defendant to forty-one months’ imprisonment, at the low end of the guideli ne range. Effective November 1, 2001, the Sentencing Commissi on promulgated Guidelines Amendment 632, which amended § 2L1.2(b)’ s aggravated-felony enhancement to provide for an increase of eight to sixteen levels according to the seriousness of the earlier aggravated felony. See USSG Supp. to App. C at 222-25 (Nov. 1, 2001); USSG § 2L1.2(b) (Nov. 1, 2001). In response, defendant filed a pro se motion to modify his sente nce under 18 U.S.C.-3-

§ 3582(c)(2), arguing that Amendment 632 had lowere d the authorized term of imprisonment. The district court denied the motionand defendant appealed. The government concedes on appeal that if Amendment632 were to be applied retroactively to this defendant, he would receive a n eight-level increase for his prior aggravated felony conviction instead of a sixteen-level increase, and the applicable guideline range would be fifteen to twen ty-one months. Aplee. Br.
at 5 n.4. We review de novo a district court’s interpretationof the sentencing guidelines. United States v. Torres , 99 F.3d 360, 362 (10th Cir. 1996). Under 18 U.S.C. § 3582(c)(2), a court may reduce a previo usly imposed sentence if the Sentencing Commission has lowered the applicable se ntencing range and “such a reduction is consistent with applicable policy st atements issued by the Sentencing Commission.” The relevant policy statem ent, USSG § 1B1.10(a), states that “[i]f none of the amendments listed in subsection (c) is applicable, a reduction in the defendant’s term of imprisonment u nder 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and th us is not authorized.” Amendment 632 is not listed in § 1B1.10(c). As a r esult, defendant is not entitled to relief under § 1B1.10. See United States v. Avila , 997 F.2d 767, 768 (10th Cir. 1993) (per curiam).-4-

Both parties argue that the district court can neve rtheless give retroactive effect to Amendment 632 if it is clarifying rather than substantive–they dispute only whether it is clarifying or substantive. The premise is mistaken, however. The question whether an amendment to the guidelines is clarifying or substantive goes to whether a defendant was correctly sentencedunder the guidelines in the first place, not to whether a correct sentence has subsequently been reduced by an amendment to the guidelines and can be modified in a proceeding under § 3582(c)(2). An argument that a sentence was inco rrectly imposed should be raised on direct appeal or in a motion to vacate, s et aside, or correct sentence pursuant to 28 U.S.C. § 2255. Cf. United States v. Thompson , 281 F.3d 1088, 1089, 1092-93 (10th Cir.) (direct appeal), cert. denied , 123 S. Ct. 288 (2002); United States v. Kissick , 69 F.3d 1048, 1051-53 (10th Cir. 1995) (§ 2255). Because defendant proceeded exclusively under § 358 2(c)(2), we have no occasion to consider whether Amendment 632 was clar ifying or substantive and the district court should not have reached the ques tion. Amendment 632 is not listed in § 1B1.10(c), and a reduction of defendant ’s sentence under § 3582(c)(2) was “not authorized.” § 1B1.10(a). The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED. The mandate shall issue fo rthwith.