United States of America, Plaintiff-appellee, v. Pablo Luis Gomez Angarra, Defendant-appellant, 105 F.3d 670 (10th Cir. 1997)

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Defendant Pablo Louis Gomez Angarra appeals the denial of his 18 U.S.C. § 3582(c) (2) motion for reduction in sentence. In this third effort to obtain a lower sentence,¹  defendant seeks the benefit of the "safety valve" provision of USSG § 5C1.2(1)-(5) providing for sentences below the mandatory statutory minimum in certain circumstances. Defendant is now serving the mandatory minimum term but raises various arguments why he qualifies for further relief. The government erroneously conceded that § 5C1.2, which became effective approximately two years after defendant's original sentencing, may be applied retroactively. The district court did not discuss retroactivity, but concluded that defendant did not meet the § 5C1.2(5) criteria of truthful disclosure.

A defendant may seek modification of a term of imprisonment when the Sentencing Commission later lowers the applicable sentencing range. 18 U.S.C. § 3582(c). A reduction in sentence, however, must be "consistent with applicable policy statements issued by the Sentencing Commission." Id. § 3582(c) (2). The policy statement at § 1B1.10(c) does not include Amendment 509, which added § 5C1.2, among the amendments to be applied retroactively. Therefore, we have held that § 5C1.2 may not be applied retroactively to a sentence entered before its effective date. United States v. Torres, 99 F.3d 360, 362-63 (10th Cir. 1996). Torres controls the determination of this appeal.

AFFIRMED.

The mandate shall issue forthwith.