United States v. James Bagby

554 F. App'x 659

Opinion

MEMORANDUM **

James Edward Bagby appeals pro se from the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We review de novo the issue of whether a district court has the authority to reduce a sentence under 18 U.S.C. § 3582(c)(2). United States v. Pleasant, 704 F.3d 808, 810 (9th Cir.2013). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Bagby contends that he is eligible for a reduction of his sentence under 18 U.S.C. § 3582(c)(2) because his sentence was based on U.S.S.G. § 2D1.1, which subsequently was amended by the Sentencing Commission. However, in accordance with the binding plea agreement, the court did not rely on U.S.S.G. § 2D1.1 to calculate the Guidelines range, but instead relied on the Career Offender guideline, U.S.S.G. § 4B1.1. Therefore, Bagby’s sentence was not based on a sentencing range that subsequently has been lowered by the Sentencing Commission. See United States v. Wesson, 583 F.3d 728, 730-32 (9th Cir. 2009). In addition, a reduction would not be consistent with the Sentencing Commission’s policy statements because the Guidelines range calculated prior to any variance has not been lowered as a result of an amendment. See U.S.S.G. § 1B1.10 cmt. n. 1(A); Pleasant, 704 F.3d at 811-12. Thus, Bagby did not satisfy the criteria required to be eligible for a sentence reduction and the district court did not err when it denied Bagby’s motion. See Wesson, 583 F.3d at 730-32.

AFFIRMED.

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