United States v. Michael Andros ( 2013 )

FILED
NOT FOR PUBLICATION FEB 12 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30099
Plaintiff - Appellee, D.C. No. 2:08-cr-00189-JLR-1
v.
MEMORANDUM *
MICHAEL ANDROS,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted February 4, 2013
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Michael Andros appeals the district court’s order denying his motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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 Andros can 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, — F.3d. —, 2013 WL 11892, at *3 (9th
Cir. Jan. 2, 2013). Andros’ pre-variance applicable guideline range was his career
offender range under U.S.S.G. § 4B1.1. The Sentencing Commission’s
amendments to the Guidelines have not lowered that guideline range. See United
States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009). Andros is therefore ineligible
for a reduction of sentence.
Andros points out that his applicable guideline range has, in fact, been
lowered. This reduction, however, results from the Fair Sentencing Act’s
amendments to 21 U.S.C. § 841 and the operation of § 4B1.1, not from an
amendment to the Guidelines Manual. This reduction therefore does not satisfy
2
§ 1B1.10. See U.S.S.G. § 1B1.10(a)(2) (“A reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and therefore is not
authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n amendment listed in
subsection (c) does not have the effect of lowering the defendant’s applicable
guideline range.”).1
AFFIRMED.
1
The court will hold issuance of the mandate in this case until the mandate
issues in United States v. Pleasant, No. 12-10213, — F.3d. —, 2013 WL 11892(9th Cir. Jan. 2, 2013).
3