United States v. Susan Su

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2020
• Docket: 18-15978
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-15978

Plaintiff-Appellee, D.C. Nos. 4:17-cv-02885-JST 4:11-cr-00288-JST-1 v.

SUSAN XIAO-PING SU, AKA Susan Su, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Susan Xiao-Ping Su appeals pro se from the district court’s order denying

her 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.

Su contends that the district court erred by denying her motion for a sentence

* 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). reduction under Amendments 791 and 792 to the Sentencing Guidelines. We

review de novo whether a district court had authority to modify a sentence under

section 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir.

2009). The district court correctly concluded that it lacked authority to reduce Su’s

sentence under Amendments 791 and 792 because those amendments are not

retroactive under U.S.S.G. § 1B1.10(d). See U.S.S.G. § 1B1.10 cmt. n.1(A)

(“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an

amendment listed in subsection (d).”); United States v. Ornelas, 825 F.3d 548, 550

(9th Cir. 2016). We do not reach Su’s additional arguments regarding her

counsel’s performance, conviction, and underlying sentencing because these

claims are not cognizable in a section 3582(c)(2) proceeding. See Dillon v. United

States, 560 U.S. 817, 826-27, 831 (2010).

We decline to consider Su’s claims for relief under the First Step Act of

2018 and U.S.S.G. § 1B1.13(2) because they were not raised before the district

court or in her opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

1999) (appellate court will not consider issues not properly raised before the

district court or in the opening brief).

To the extent Su is seeking reconsideration of this court’s prior order

denying a certificate of appealability with respect to her claims under 28 U.S.C.

§ 2255, that request is denied. See 9th Cir. R. 27-10(a)(3).

2 18-15978 Su’s motion for immediate release and all other pending motions are denied.

AFFIRMED.

3 18-15978