United States v. Carlos Gonzalez-Castillo ( 2013 )

FILED
NOT FOR PUBLICATION SEP 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30006
Plaintiff - Appellee, D.C. No. 3:07-cr-05051-RBL-1
Western District of Washington,
v. Tacoma
CARLOS M GONZALEZ-CASTILLO,
ORDER
Defendant - Appellant.
Before: FISHER, GOULD and PAEZ, Circuit Judges.
The memorandum disposition filed February 7, 2013 is amended. An
amended memorandum disposition will be filed concurrently with this order.
The petitions for rehearing and rehearing en banc are otherwise
DENIED, and no further petitions for rehearing will be accepted.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 16 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-30006
Plaintiff - Appellee, D.C. No. 3:07-cr-05051-RBL-1
v.
AMENDED MEMORANDUM*
CARLOS GONZALEZ-CASTILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 4, 2013**
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
The memorandum filed February 7, 2013, is amended below.
Carlos Gonzalez-Castillo appeals the district court’s order denying his
motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Section 3582(c)(2) allows a modification of a term of imprisonment when
two requirements are satisfied: (1) the sentence is based on a sentencing range that
subsequently has been lowered by the Sentencing Commission; and (2) such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission. See United States v. Waters, 648 F.3d 1114, 1116 (9th Cir. 2011).
Even assuming Gonzalez-Castillo could satisfy the first requirement, he cannot
satisfy the second.
The applicable policy statement provides that a reduction in a defendant’s
term of imprisonment is not authorized if an amendment to the Sentencing
Guidelines “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2). The term “applicable guideline range”
refers to the defendant’s guideline range before application of any departure or
variance. See United States v. Pleasant, 704 F.3d 808, 812 (9th Cir. 2013).
Gonzalez-Castillo’s applicable guideline range before any variance was his career
offender range under U.S.S.G. § 4B1.1. The Sentencing Commission’s
amendments to the Guidelines have not lowered his career offender range.
Gonzalez-Castillo is therefore ineligible for a reduction of sentence.
Gonzalez-Castillo’s ex post facto and statutory challenges to § 1B1.10 are
waived because they are raised for the first time in his reply brief. See United
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States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012). Even if not waived, see
Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010), Gonzalez-Castillo
has not shown plain error. His ex post facto argument is in conflict with United
States v. Trujillo, 713 F.3d 1003, 1011-12 (9th Cir. 2013), where we agreed with
the government that a defendant “is not entitled to select only the favorable portion
of an amendment to a single Guideline and to disregard the unfavorable portion, so
long as his overall sentence is not increased beyond that originally imposed.” His
statutory authority argument conflicts with the last clause in 18 U.S.C.
§ 3582(c)(2) and 28 U.S.C. § 994(u), each of which grants the Commission
authority to determine who is eligible for a reduction in sentence.
AFFIRMED.
3