United States v. Jose Lopez-Buelna

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2019
• Docket: 18-10179
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10179

Plaintiff-Appellee, D.C. No. 2:09-cr-00113-GMN-2

v. MEMORANDUM* JOSE LOPEZ-BUELNA,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, Chief Judge, Presiding

Submitted March 12, 2019**

Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.

Jose Lopez-Buelna 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. We review de novo whether a district court

had authority to modify a sentence under section 3582(c)(2), see United States v.

* 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). Leniear, 574 F.3d 668, 672 (9th Cir. 2009), and we affirm.

Although the Guidelines range applicable to Lopez-Buelna’s offenses was

lowered by Amendment 782, because Lopez-Buelna’s 240-month sentence is

below the minimum of the amended Guidelines range of 324-405 months, the

district court correctly concluded that Lopez-Buelna is ineligible for a sentence

reduction. See U.S.S.G. § 1B1.10(b)(2)(A) (“[T]he court shall not reduce the

defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy

statement to a term that is less than the minimum of the amended guideline

range.”); United States v. Davis, 739 F.3d 1222, 1224 (9th Cir. 2014). Lopez-

Buelna’s argument that the district court miscalculated the amended Guidelines

range is without merit. Contrary to his assertion, the district court could not revisit

the aggravating role enhancement or its drug quantity determination in these

section 3582(c)(2) proceedings. See Dillon v. United States, 560 U.S. 817, 831

(2010). Moreover, Amendment 794 is not one of the listed amendments under

U.S.S.G. § 1B1.10(d) and, therefore, did not provide an independent basis for a

sentence reduction under section 3582(c)(2). See U.S.S.G. § 1B1.10 cmt. n.1(A).

AFFIRMED.

2 18-10179