United States v. Mason

529 F. App'x 842

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2013
• Docket: No. 12-30244
• Status: Published

Opinion

MEMORANDUM

**

Gary L. Mason appeals from the district court’s order denying his 18 U.S.C. § 3582(e)(2) motion for reduction of sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The government contends that this appeal is barred by the appeal waiver in Mason’s plea agreement. We disagree. The appeal waiver does not encompass a decision regarding a section 3582(c)(2) motion. See United States v. Lightfoot, 626 F.3d 1092, 1094-95 (9th Cir.2010).

Mason contends that he is entitled to a sentence reduction based on Amendment 750 to the Sentencing Guidelines. We review de novo whether the district court had authority to modify a defendant’s sentence under section 3582(c)(2). See United States v. Austin, 676 F.3d 924, 926 (9th Cir.2012). Mason is not eligible for a sentence reduction because his sentence was based on the sentencing range stipulated 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, — U.S. -, 131 S.Ct. 2685, 2695-96, 180 L.Ed.2d 519 (2011) (Sotoma-yor, J., concurring). The plea agreement does not call for Mason 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 authority to modify Mason’s sentence under section 3582(c)(2). See Austin, 676 F.3d at 930.

Mason argues that Austin was wrongly decided. We are bound by Austin. See United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir.2009).

AFFIRMED.

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