United States v. Miguel G. Ayarza

15 F.3d 1090, 1993 U.S. App. LEXIS 37504, 1993 WL 533439

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 23, 1993
• Docket: 93-30114
• Status: Published

Opinion

15 F.3d 1090
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Miguel G. AYARZA, Defendant-Appellant.

No. 93-30114.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 6, 1993.*
Decided Dec. 23, 1993.

Before: SNEED, NOONAN, and TROTT, Circuit Judges.

MEMORANDUM**

Miguel Gabriel Ayarza, a federal prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2255 motion to modify his sentence. Ayarza seeks retroactive application of United States Sentencing Guideline (U.S.S.G.) Amendment 459, which changed U.S.S.G. Sec. 3E1.1, to allow an additional one point downward adjustment for assisting authorities in the prosecution or investigation of one's own offense. We have jurisdiction under 28 U.S.C. Sec. 2255 and affirm.

This court reviews de novo the denial of a section 2255 motion. United States v. Moore, 921 F.2d 207, 209 (9th Cir.1990). We review de novo the district court's application of the United States Sentencing Guidelines. United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir.1990).

We recently held that U.S.S.G. Amendment 459 is not retroactive. United States v. Cueto, No. 92-50186, slip op. at 13197-99 (9th Cir. Nov. 23, 1993); United States v. Aldana-Ortiz, No. 91-50664, slip op. at 10505-06 (9th Cir. Sept. 23, 1993).

On May 27, 1988, Ayarza was sentenced for bank robbery. On November 1, 1992, U.S.S.G. Amendment 459 took effect. Therefore, Ayarza's contention is precluded by our holdings in Cueto and Aldana-Ortiz. See Cueto, No. 92-50186, slip op. at 13197-99; Aldana-Ortiz, No. 91-50664, slip op. at 10505-06.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3