United States v. Gary Mason

519 F. App'x 495

Opinion

FILED NOT FOR PUBLICATION JUN 20 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-30244

Plaintiff - Appellee, D.C. No. 2:08-cr-00141-FVS

v. MEMORANDUM * GARY L. MASON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding

Submitted June 18, 2013 **

Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

Gary L. Mason appeals from the district court’s order denying his 18 U.S.C.

§ 3582(c)(2) motion for reduction of sentence. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

The government contends that this appeal is barred by the appeal waiver in

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Mason’s plea agreement. We disagree. The appeal waiver does not encompass a

decision regarding a section 3582(c)(2) motion. See United States v. Lightfoot, 626

F.3d 1092, 1094-95 (9th Cir. 2010).

Mason contends that he is entitled to a sentence reduction based on

Amendment 750 to the Sentencing Guidelines. We review de novo whether the

district court had authority to modify a defendant’s sentence under section

3582(c)(2). See United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012). Mason

is not eligible for a sentence reduction because his sentence was based on the

sentencing range stipulated in a binding plea agreement under Federal Rule of

Criminal Procedure 11(c)(1)(C), and not on a sentencing range that has been

subsequently lowered by the Sentencing Commission, as required by section

3582(c)(2). See Freeman v. United States, 131 S. Ct. 2685, 2695-96 (2011)

(Sotomayor, J., concurring). The plea agreement does not call for Mason to be

sentenced within a particular Guidelines sentencing range, nor is any such

Guidelines range expressly used in the agreement or evident from the agreement

itself. See id. at 2697-98. Accordingly, the district court lacked authority to

modify Mason’s sentence under section 3582(c)(2). See Austin, 676 F.3d at 930.

Mason argues that Austin was wrongly decided. We are bound by Austin.

See United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009).

AFFIRMED.

2 12-30244