United States v. Josef Boehm ( 2013 )

FILED
NOT FOR PUBLICATION FEB 21 2013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. 12-30086
Plaintiff - Appellee, D.C. No. 3:04-cr-00003-JWS
v.
MEMORANDUM *
JOSEF FRANZ BOEHM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Josef Franz Boehm appeals from the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction under
28 U.S.C. § 1291, and 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).
Boehm contends that the district court erred by denying his motion to reduce
his sentence under the retroactive amendments to the Sentencing Guidelines for
crack cocaine offenses. He argues that his sentence is longer than necessary in
light of the 18 U.S.C. § 3553(a) sentencing factors. We review a district court’s
decision to deny a section 3582(c)(2) motion for abuse of discretion. See United
States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009). We review de novo
whether the district court had jurisdiction to modify a sentence under section
3582(c)(2). See United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012).
The government contends that the district court lacked jurisdiction to
consider Boehm’s motion because his sentence was based on a plea agreement
entered into under Federal Rule of Criminal Procedure 11(c)(1)(C), rather than on
a Guidelines range that has been lowered. Even assuming that the plea agreement
was entered into under Rule 11(c)(1)(C), however, the district court had
jurisdiction to consider Boehm’s motion because the agreement used as the
stipulated sentencing range a Guidelines range that has been lowered. See
Freeman v. United States, 131 S. Ct. 2685, 2699-700 (2011) (Sotomayor, J.,
concurring).
Nevertheless, the district court did not abuse its discretion by denying
Boehm’s motion in light of the section 3353(a) sentencing factors, particularly the
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nature of Boehm’s offense conduct and the danger he poses to the public. See 18
U.S.C. §§ 3553(a), 3582(c)(2).
AFFIRMED.
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