United States v. Amado Maldonado

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2019
• Docket: 18-10431
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10431

Plaintiff-Appellee, D.C. No. 1:09-cr-00024-LJO-1

v. MEMORANDUM* AMADO MALDONADO,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Amado Maldonado appeals pro se from the district court’s order denying his

motions for a sentence reduction under 18 U.S.C. § 3582(c)(2) and for relief under

Federal Rule of Civil Procedure 60(b). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm in part and dismiss in part.

* 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). Maldonado first contends that the district court erred by denying his motion

for a sentence reduction under Amendment 794 to the Sentencing Guidelines. We

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

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

2009). The district court correctly determined that Maldonado is ineligible for a

sentence reduction 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). We do not reach Maldonado’s contentions regarding the district

court’s alleged errors in calculating the Guidelines range at resentencing because

these arguments are not cognizable in a section 3582(c)(2) proceeding. See Dillon

v. United States, 560 U.S. 817, 825-26, 831 (2010) (alleged errors unrelated to an

amendment that lowers the defendant’s guideline range are outside the scope of a

section 3582(c)(2) proceeding).

Maldonado next contends that the district court erred by denying his Rule

60(b) motion. The district court properly construed Maldonado’s purported Rule

60(b) motion as a disguised motion for post-conviction relief under 28 U.S.C.

§ 2255. See United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011).

Accordingly, Maldonado requires a certificate of appealability (“COA”) to proceed

2 18-10431 with this portion of his appeal. See 28 U.S.C. § 2253(c)(1)(B); Muth v. Fondren,

676 F.3d 815, 822 (9th Cir. 2012). We treat Maldonado’s briefing as a request for

a COA. See 9th Cir. R. 22-1(e). So treated, the motion is denied because

Maldonado has not made a “substantial showing of the denial of a constitutional

right.” See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

We, therefore, dismiss Maldonado’s appeal of the district court’s denial of his

purported Rule 60(b) motion. See Muth, 676 F.3d at 823.

AFFIRMED in part; DISMISSED in part.

3 18-10431