United States v. Guillermo Barreto-Ortiz ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50452
Plaintiff-Appellee, D.C. No. 3:07-cr-02882-BEN
v.
MEMORANDUM*
GUILLERMO BARRETO-ORTIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Guillermo Barreto-Ortiz appeals from the district court’s order denying his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The government seeks the dismissal of this appeal as untimely. Because
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Barreto-Ortiz is a pro se prisoner, his notice of appeal (“NOA”) is deemed filed
when it was delivered to prison authorities for forwarding to the court. See Fed. R.
App. P. 4(c)(1). The record reflects, and the government does not dispute, that
Barreto-Ortiz’s NOA was postmarked on October 15, 2015. Barreto-Ortiz’s NOA
must, therefore, have been delivered to prison officials no later than that date.
Because judgment was entered on October 1, 2015, his NOA was thus timely filed.
See Fed. R. App. P. 4(b)(1)(A)(i), (c)(1).
Barreto-Ortiz contends that the district court abused its discretion by
denying his motion for a sentence reduction under Amendment 782 to the
Sentencing Guidelines. The district court acted within its discretion when it denied
Barreto-Ortiz a sentence reduction based on its determination that he posed a threat
to the public in light of the nature of the offense. See U.S.S.G. § 1B1.10 cmt.
n.1(B); United States v. Lightfoot, 626 F.3d 1092, 1096 (9th Cir. 2010).
AFFIRMED.
2 15-50452