United States v. Alvaro Zepeda-Toscano , 671 F. App'x 588 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10572
Plaintiff-Appellee, D.C. No. 4:08-cr-01370-CKJ
v.
MEMORANDUM*
ALVARO ZEPEDA-TOSCANO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Alvaro Zepeda-Toscano appeals pro se from the district court’s orders
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.
Zepeda-Toscano contends that he is entitled to a sentence reduction under
*
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).
Amendment 782 to the Sentencing Guidelines. We review de novo whether a
district court had authority to modify a sentence under section 3582(c)(2). See
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Assuming without
deciding that Zepeda-Toscano’s Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement does not preclude him from a sentence reduction under United
States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), he is nonetheless
ineligible for a sentence reduction under Amendment 782 because his sentence is
already below the minimum of the amended guideline range. See U.S.S.G.
§ 1B1.10(b)(2)(A) (“[T]he court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that
is less than the minimum of the amended guideline range.”). Accordingly, the
district court did not err by denying Zepeda-Toscano’s motion.
We reject Zepeda-Toscano’s claim that he received ineffective assistance of
counsel because the Federal Public Defender did not represent him in these
proceedings.
AFFIRMED.
2 15-10572