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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:
Thomas and Daniel Drath moved separately under 18 U.S.C. §
3582(c)(2) for reduction of sentence based on a post-sentencing
amendment to United States Sentencing Guidelines § 1B1.3. See
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 in

violation of 21 U.S.C. § 846 (count 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 denied 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 § 3582(c)(2)
motions, and concluded it lacked authority to apply Amendment 439
retroactively and to reduce the sentences. Thomas and Daniel
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appealed.
II.
Thomas and Daniel argue that because Amendment 439 merely
clarifies U.S.S.G. § 1B1.3, as opposed to substantively changing
the section, 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). See 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. See Maseratti, 1 F.3d at 340 (Amendment 439);
Evbuomwan, 992 F.2d at 74 n.1 (same). See also United 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
of imprisonment "based on a sentencing range that has been
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subsequently lowered by the Sentencing Commission . . . , if such
a reduction is consistent with applicable policy statements issued
by 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 applicable 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). If none of the amendments listed in
subsection (c) is applicable, a reduction in the defendant's
term of imprisonment under 18 U.S.C. § 3582(c)(2) is not
consistent with this policy statement 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." Id., comment. (n.1) (emphasis added).
Accordingly, construing 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.
1990)). See also United States v. Pardue, 36 F.3d 429, 430 (5th
1Former 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.
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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 statement. 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. Id. (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.
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