United States v. Jose Villasenor

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 16-50296

Plaintiff-Appellee, D.C. No. 2:11-cr-00050-GAF-TJH Central District of California, v. Los Angeles

JOSE LUIS VILLASENOR, a.k.a. Booger ORDER Eyes, a.k.a. Green Eyes,

Defendant-Appellant.

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Villasenor’s petition for panel rehearing (Docket Entry No. 22) is granted.

The memorandum disposition filed on May 17, 2018, is withdrawn. A

replacement memorandum disposition is being filed concurrently with this order.

Villasenor’s petition for rehearing en banc is denied as moot.

No further petitions for rehearing will be entertained in this case. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50296

Plaintiff-Appellee, D.C. No. 2:11-cr-00050-GAF-TJH

v. MEMORANDUM* JOSE LUIS VILLASENOR, a.k.a. Booger Eyes, a.k.a. Green Eyes,

Appeal from the United States District Court for the Central District of California Terry J. Hatter, District Judge, Presiding

Submitted May 15, 2018**

Jose Luis Villasenor 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 vacate and remand.

Villasenor contends that he is eligible for a sentence reduction under

* 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). Amendment 782 to the Sentencing Guidelines. We review de novo whether a

district court had authority to modify a sentence under section 3582(c)(2). See

United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Because Villasenor

was sentenced after the district court accepted the parties’ Federal Rule of Criminal

Procedure 11(c)(1)(C) plea agreement, he is not eligible for relief under section

3582(c)(2) unless “the district court’s decision to accept the plea and impose the

recommended sentence was based on the Guidelines.” United States v. Davis, 825

F.3d 1014, 1027 (9th Cir. 2016) (en banc) (quotations omitted).

The Supreme Court recently clarified that “a sentence imposed pursuant to a

Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that

range was part of the framework the district court relied on in imposing the

sentence or accepting the agreement.” Hughes v. United States, 138 S. Ct. 1765,

1775 (2018). The district court in this case did not have the benefit of Hughes

when it denied Villasenor’s motion; therefore, we vacate its order denying relief

and remand. On remand, the district court shall determine whether Villasenor is

eligible for a sentence reduction under Hughes and, if so, whether he should

receive a reduction in light of the 18 U.S.C. 3553(a) sentencing factors. See Dillon

v. United States, 560 U.S. 817, 826 (2010).

VACATED and REMANDED.

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