United States v. Tolbert

339 F. App'x 722

Opinion

MEMORANDUM

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Alfonzo Darnell Tolbert appeals from the district court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

Tolbert contends that the district court had authority to lower his sentence pursuant to 18 U.S.C. § 3582(c) because his sentence was “based on” a range that Amendment 706 to the United States Sentencing Guidelines has subsequently lowered. This contention is foreclosed because Tolbert received a mandatory-minimum sentence. See United States v. Paulk, 569 F.3d 1094, 1094-96 (9th Cir.2009) (per curiam); see also United States v. Leniear, 568 F.3d 779, 783-84 (9th Cir.2009).

He further argues that the district court erred pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Hollis, 490 F.3d 1149, 1156-57 (9th Cir.2007), because the indictment did not allege that the drugs involved were crack cocaine. This court has rejected similar contentions as beyond the scope of a motion under 18 U.S.C. § 3582(c). See Paulk, 569 F.3d at 1094-96. In any event, Tolbert conceded as part of the factual basis of his guilty plea that the drugs recovered were in rock cocaine form. See Hollis, 490 F.3d at 1157.

Tolbert’s motion to stay his appeal until the issuance of a decision in Paulk is denied as moot.

AFFIRMED.

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