Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.cesar Augusto Cetina Gomez, Petitioner, Appellant, v. United States of America, Respondent, Appellee, 50 F.3d 1 (1st Cir. 1995)

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US Court of Appeals for the First Circuit - 50 F.3d 1 (1st Cir. 1995)

March 28, 1995

Appeal from the United States District Court for the District of Puerto Rico [Hon. Jose Antonio Fuste, U.S. District Judge ]

Cesar Augusto Cetina Gomez on brief pro se.

Guillermo Gil, United States Attorney, Warren Vazquez, Assistant United States Attorney, and Jos e A. Quiles-Espinosa, Senior Litigation Counsel, on brief for appellee.

D.Puerto Rico


Before TORRUELLA, Chief Judge, SELYA and BOUDIN, Circuit Judges.


Appellant Cesar Augusto Cetina-Gomez was convicted of various offenses related to an effort at cocaine smuggling and sentenced to, inter alia, seventy-eight months' imprisonment. He appeals a district court order that summarily denied his 28 U.S.C. § 2255 motion to reduce that sentence. Appellant contends that the district court erred by refusing to reduce his sentence under an amendment to the United States Sentencing Guidelines that was enacted approximately two years after he was sentenced. See United States Sentencing Commission, Guidelines Manual Sec. 2D1.1(c), Application Note 1 (Nov. 1993) (providing that weight of materials that must be separated from a controlled substance before it can be used are to be excluded from sentencing calculations). The district court determined that this amendment did not apply to appellant because his sentence was based on the net weights of mixtures that contained cocaine in a usable form. We have thoroughly reviewed the record and the parties' briefs on appeal. We hold that the district court's analysis is correct. Appellant has failed to come forward with any evidence that the cocaine which he was carrying was not in a usable form when seized. The portions of the record that are before us indicate to the contrary. Accordingly, the judgment of the district court is affirmed. See Local Rule 27.1.