United States v. Carlos Gonzalez-Castillo

507 F. App'x 683

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2013
• Docket: 12-30006
• Status: Unpublished

Opinion

MEMORANDUM **

Carlos Gonzalez-Castillo appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.

Section 3582(c)(2) allows a modification of a term of imprisonment when two re quirements are satisfied: (1) the sentence is based on a sentencing range that subsequently has been lowered by the Sentencing Commission; and (2) such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. See United States v. Waters, 648 F.3d 1114, 1116 (9th Cir.2011). Even assuming Gonzalez-Castillo could satisfy the first requirement, he cannot satisfy the second.

The applicable policy statement provides that a reduction in a defendant’s term of imprisonment is not authorized if an amendment to the Sentencing Guidelines “does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2). The term “applicable guideline range” refers to the defendant’s guideline range before application of any departure or variance. See United States v. Pleasant, 704 F.3d 808, 812 (9th Cir.2013). Gonzalez-Castillo’s applicable guideline range before any variance was his career offender range under U.S.S.G. § 4B1.1. The Sentencing Commission’s amendments to the Guidelines have not lowered his career offender range. Gonzalez-Castillo is therefore ineligible for a reduction of sentence.

Gonzalez-Castillo’s ex post facto, Administrative Procedure Act and other statutory challenges to § 1B1.10 are waived because they are raised for the first time in his reply brief. See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir.2012).

Affirmed.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.