United States v. Justin Alford

519 F. App'x 472

Opinion

FILED NOT FOR PUBLICATION MAY 21 2013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. 12-30136

Plaintiff - Appellee, D.C. No. 2:09-cr-00009-TSZ

v. MEMORANDUM * JUSTIN BLAIR ALFORD,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted May 14, 2013 **

Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.

Justin Blair Alford 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.

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

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

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

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

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

parties’ stipulation 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 Alford 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 jurisdiction to modify Alford’s sentence

under section 3582(c)(2). See Austin, 676 F.3d at 930.

Alford urges us to reconsider our decision in Austin. We are bound by that

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

Alford finally contends that Dorsey v. United States, 132 S. Ct. 2321 (2012),

supports remand. This contention fails both because the district court lacked

jurisdiction to modify the sentence and because Alford was sentenced before the

Fair Sentencing Act took effect. See Dorsey, 132 S. Ct. at 2335; United States v.

Augustine, No. 12-50061, 2013 WL 1317037, at *5 (9th Cir. Apr. 3, 2013).

AFFIRMED.

2 12-30136