United States v. David Derryberry , 642 F. App'x 788 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30110
Plaintiff - Appellee, D.C. No. 9:11-cr-00015-DWM
v.
MEMORANDUM*
DAVID DERRYBERRY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
David Derryberry appeals from the district court’s order granting his motion
for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under
28 U.S.C. § 1291. We review de novo whether the district court has authority to
*
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).
modify a sentence under section 3582(c)(2), see United States v. Leniear, 574 F.3d
668, 672 (9th Cir. 2009), and we affirm.
The district court reduced Derryberry’s sentence from 96 months to 92
months based on Amendment 782 to the Sentencing Guidelines. Derryberry
contends that the district court erred by failing to reduce his sentence further.
Because 92 months was the minimum of Derryberry’s amended guideline range,
the district court was precluded from reducing the sentence further. See U.S.S.G.
§ 1B1.10(b)(2)(A) (except in a case of a government motion for a departure based
on substantial assistance, a district court “shall not reduce the defendant’s term of
imprisonment . . . to a term that is less than the minimum of the amended guideline
range”); United States v. Davis, 739 F.3d 1222, 1224 (9th Cir. 2014). Contrary to
Derryberry’s contention, the application of section 1B1.10(b)(2)(A) to his case
does not violate the Ex Post Facto Clause because it did not “increase the
punishment for his crime over what was imposed when he was sentenced.” See
United States v. Waters, 771 F.3d 679, 681 (9th Cir. 2014).
AFFIRMED.
2 15-30110