United States v. Danny Pereda

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2019
• Docket: 19-10041
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10041

Plaintiff-Appellee, D.C. No. 2:11-cr-00119-WBS-5

v. MEMORANDUM* DANNY PEREDA, AKA T-Mighty,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted December 11, 2019**

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

Danny Pereda 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.

Pereda argues that he is entitled to a sentence reduction under Amendment

782. We review de novo whether a district court has authority to modify 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 under section 3582(c)(2). See United States v. Wesson, 583 F.3d 728, 730

(9th Cir. 2009). As the district court concluded, Pereda was sentenced as a career

offender under U.S.S.G. § 4B1.1. Contrary to Pereda’s assertion, the fact that the

parties stipulated to, and the district court accepted, a sentence below the career-

offender guideline range does not make him eligible for a reduction. For purposes

of a sentence reduction motion, the “applicable” guideline range is the pre-variance

range. See U.S.S.G. § 1B1.10 cmt. n.1(A); United States v. Pleasant, 704 F.3d

808, 811-12 (9th Cir. 2013), overruled on other grounds by United States v. Davis,

825 F.3d 1014 (9th Cir. 2016) (en banc). Because the pre-variance range here was

the career-offender range, which was not lowered by Amendment 782, Pereda is

ineligible for a sentence reduction. See Pleasant, 704 F.3d at 812; Wesson, 583

F.3d at 731.

Pereda’s remaining claims are outside the scope of this section 3582(c)(2)

proceeding. See Dillon v. United States, 560 U.S. 817, 831 (2010).

AFFIRMED.

2 19-10041