United States v. Richard Mendoza

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 17-10236
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10236

Plaintiff-Appellee, D.C. No. 2:07-cr-00248-WBS

v. MEMORANDUM* RICHARD MENDOZA,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Richard Mendoza appeals 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 affirm.

Mendoza contends that the district court erred by failing to calculate and

* 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). consider his amended Guidelines range. The record reflects that the district court

considered the amended Guidelines ranges proposed by Mendoza and assumed that

Mendoza was eligible for a reduction. The court then considered the pertinent 18

U.S.C. § 3553(a) factors, and determined that a reduction was not warranted under

those factors. Contrary to Mendoza’s contentions, the court correctly applied the

two-step approach set forth in Dillon v. United States, 560 U.S. 817, 826-27

(2010).

Mendoza further contends that the district court abused its discretion by

relying on clearly erroneous facts and placing undue weight on his post-sentencing

conduct in denying the reduction. Considering Mendoza’s prison disciplinary

record and underlying conviction, the court’s finding that Mendoza posed a safety

risk to the public was not clearly erroneous. See United States v. Mercado-

Moreno, 869 F.3d 942, 953 (9th Cir. 2017). Furthermore, the court acted within its

discretion when it relied on Mendoza’s post-sentencing conduct to deny his

motion. See U.S.S.G. § 1B1.10 cmt. n.1(B)(ii); United States v. Lightfoot, 626

F.3d 1092, 1096 (9th Cir. 2010). In light of the totality of the circumstances, the

district court did not abuse its discretion by denying Mendoza’s motion. See

United States v. Dunn, 728 F.3d 1151, 1160 (9th Cir. 2013).

AFFIRMED.

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