United States v. Anthony Neal , 105 F.3d 667 ( 1996 )

105 F.3d 667

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony NEAL, Defendant-Appellant.

No. 95-56861.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 16, 1996.*
Decided Dec. 19, 1996.

Before SNEED, TROTT, and THOMAS, Circuit Judges.

1

MEMORANDUM**

2

Anthony Cecil Neal, a federal prisoner, appeals pro se the denial of his motion to reconsider his motion pursuant to 18 U.S.C. § 3582, which the district court reclassified as a motion pursuant to 28 U.S.C. § 2255. Neal pleaded guilty to possession with intent to distribute 108 grams of phenycyclidine (PCP) in violation of 21 U.S.C. § 841(b)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 2255, and we affirm in part and vacate and remand in part.

3

Neal first contends that the district court erred by failing to apply Amendment 484 of the Sentencing Guidelines retroactively. Neal, however, was sentenced to 120 months imprisonment which is the mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). Because the application of Amendment 484 would have no effect upon Neal's sentence we affirm the district court's denial of relief. See U.S.S.G. § 5G1.1(b); see also United States v. Sharp, 883 F.2d 829, 831 (9th Cir.1989) (statutory minimums trump the guidelines); see also Neal v. United States, 116 S.Ct. 763, 768-69 (1996) (amendment to sentencing guidelines does not displace existing interpretation of corresponding statute; Congress has responsibility for revising its statutes).

4

Neal next contends that the district court erred by construing his 18 U.S.C. § 3582 motion as a motion pursuant to 28 U.S.C. § 2255. We agree, see Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir.1995), and we therefore remand this case to the district court for the limited purpose of amending the judgment to deny relief under 18 U.S.C. § 3582.1

5

AFFIRMED in part; VACATED and REMANDED in part. Each party shall bear its own costs.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

We do not review Neal's contention that the district court improperly calculated his drug quantity by including the drugs found on his codefendant; such a claim is beyond the scope of his section 3582 motion