United States v. Alejandro Tinoco

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 18-50103
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50103

Plaintiff-Appellee, D.C. No. 2:12-cr-01093-DSF

v.

ALEJANDRO TINOCO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Alejandro Tinoco appeals pro se from the district court’s order denying his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Tinoco contends that the district court erred by denying his motion for a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). sentence reduction under Amendments 782 and 794 to the Sentencing Guidelines.

We review de novo whether a district court had authority to modify a sentence

under section 3582(c)(2). United States v. Leniear, 574 F.3d 668, 672 (9th Cir.

2009).

Because Tinoco’s 240-month sentence is below the amended Guidelines

range of 292-365 months, the district court properly concluded that he was

ineligible for a reduction under Amendment 782. See U.S.S.G. § 1B1.10(b)(2)(A)

(district court may not reduce a sentence under section 3582(c)(2) “to a term that is

less than the minimum of the amended guideline range”). The district court also

correctly denied Tinoco’s motion under Amendment 794 because Amendment 794

is not a covered amendment under U.S.S.G. § 1B1.10(d). See U.S.S.G. § 1B1.10

cmt. n.1(A) (“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is

triggered only by an amendment listed in subsection (d).”); United States v.

Ornelas, 825 F.3d 548, 550 & n.3 (9th Cir. 2016).

In light of Tinoco’s ineligibility for a sentence reduction as a result of any

qualifying amendment, the district court could not consider his post-sentencing

rehabilitation or the 18 U.S.C. § 3553(a) sentencing factors as a basis for granting a

reduction. See Dillon v. United States, 560 U.S. 817, 826-27 (2010).

AFFIRMED.

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