United States v. Kevin Doucette

544 F. App'x 746

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2013
• Docket: 12-50370
• Status: Unpublished

Opinion

MEMORANDUM *

Kevin Doucette appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether a district court may modify an otherwise final sentence under § 3582. United States v. Wesson, 583 F.3d 728, 730 (9th Cir.2009). We affirm.

Section 3582(c)(2) allows modification of a term of imprisonment when: (1) the sentence is based on a sentencing range that has subsequently been lowered by the Sentencing Commission; and (2) such reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. Doucette argues that he is eligible for a sentence reduction under Amendment 750, which made permanent earlier modifications to the drug quantity table in United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1 for offenses involving crack cocaine. But Doucette was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1. Therefore, his sentence was not based on a Guideline range that has been lowered, and was ineligible for modification under § 3582. See 18 U.S.C. § 3582(c)(2); Wesson, 583 F.3d at 731-32.

Because Doucette cannot satisfy the first requirement for a sentence modification under § 3582(c)(2), we need not con sider Doucette’s ex post facto challenge to U.S.S.G. § 1B1.10 — the Guideline that sets out the policy statements relevant to the second requirement for a sentence modification under § 3582(c)(2).

AFFIRMED.

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