United States v. Dray Mosby

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10034

Plaintiff-Appellee, D.C. No. 3:17-cr-00389-RS-2

v. MEMORANDUM* DRAY TERRY MOSBY,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Submitted October 26, 2020**

Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.

Dray Terry Mosby 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.

Mosby contends that he is eligible for a sentence reduction under section

* 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). 404 of the First Step Act of 2018 and Amendment 750 to the Sentencing

Guidelines. The record reflects that Mosby was convicted of conspiracy to

distribute methamphetamine and sentenced to the statutory minimum term set forth

in 21 U.S.C. §§ 841(b) and 846. Contrary to Mosby’s contention, neither the First

Step Act nor Amendment 750 authorized the district court to modify this sentence.

See First Step Act § 404(b) (permitting limited resentencing of defendants

sentenced for crack cocaine offenses); United States v. Charles, 749 F.3d 767, 770-

71 (9th Cir. 2014) (Amendment 750 modified drug guidelines for defendants

sentenced for crack cocaine offenses); see also United States v. Sykes, 658 F.3d

1140, 1146 (9th Cir. 2011) (“retroactive amendment to the Guidelines cannot

reduce a sentence below the statutory minimum term”).

We decline to consider Mosby’s additional claims because they are raised

for the first time on appeal. See United States v. Valdez-Novoa, 780 F.3d 906, 914

(9th Cir. 2015).

AFFIRMED.

2 20-10034