United States v. Anabel Ocegueda

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 25 2019 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50028 Plaintiff-Appellee, D.C. No. 3:12-cr-00509-CAB-1

v.

MEMORANDUM*

ANABEL OCEGUEDA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted September 18, 2019** Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Anabel Ocegueda appeals from the district court’s order denying her 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.

Ocegueda contends that she is eligible for a sentence reduction under

*

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).

Amendment 782 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). Contrary to Ocegueda’s contention, the district court properly calculated her amended Guidelines range without considering the departures for fast-track and overrepresentation of criminal history that the court granted at Ocegueda’s original sentencing. See United States v. Ornelas, 825 F.3d 548, 554-55 (9th Cir. 2016). Because Ocegueda received a 168-month sentence, which is below the minimum of her amended Guidelines range, the district court properly denied her motion for a sentence reduction. See U.S.S.G. § 1B1.10(b)(2)(A) (“[T]he court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range.”). Contrary to Ocegueda’s contention, United States v. D.M., 869 F.3d 1133 (9th Cir. 2017), does not compel a contrary result.

AFFIRMED.

2 19-50028