United States v. Wilmer Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2018
• Docket: 16-56805
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-56805

Plaintiff-Appellee, D.C. Nos. 3:16-cv-02081-DMS 3:12-cr-04965-DMS v.

WILMER ALEXIS ERAZO HERNANDEZ, MEMORANDUM* a.k.a. Lacra,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Wilmer Alexis Erazo Hernandez appeals pro se 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.

Hernandez contends that he is eligible for a sentence reduction under

* 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). Amendment 794 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). A court may not grant

a sentence reduction under section 3582 unless such a reduction would be

consistent with the applicable policy statements issued by the Sentencing

Commission, as reflected in U.S.S.G. § 1B1.10. See 18 U.S.C. § 3582(c)(2);

United States v. Ornelas, 825 F.3d 548, 549-50 (9th Cir. 2016). Section 1B1.10

does not include Amendment 794 in its list of covered amendments. See U.S.S.G.

§ 1B1.10(d). As a result, although we have held that Amendment 794 is

retroactive, see United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir.

2016), the district court properly determined that Amendment 794 cannot serve as

the basis for a sentence reduction under section 3582(c)(2). 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).”); Ornelas, 825 F.3d at

550 (court has discretion to lower a sentence if the guideline range has been

lowered as a result of an amendment listed in section 1B1.10(d)).

AFFIRMED.

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