United States v. Glafiro Gonzalez ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10060
Plaintiff-Appellee, D.C. No. 1:03-cr-05165-LJO-6
v.
MEMORANDUM*
GLAFIRO GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, Chief Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Glafiro Gonzalez appeals pro se from the district court’s order denying his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), his request to have
his federal sentence made retroactively concurrent to his state sentence, and his
Federal Rule of Civil Procedure 60(b) motion. We have jurisdiction under 28
*
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).
U.S.C. § 1291, and we affirm.
Gonzalez argues that he is eligible for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) in light of 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).
Gonzalez was convicted of a conspiracy that involved over 45 kilograms of
methamphetamine mixture. Even after Amendment 782, the guideline range
applicable to Gonzalez remains 360 months to life. See U.S.S.G. § 2D1.1(c)(1)
(2014). Because Amendment 782 did not lower Gonzalez’s applicable guideline
range, the district court correctly concluded that he is ineligible for a sentence
reduction. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B); Leniear, 574
F.3d at 674. Gonzalez’s arguments regarding his aggravating role enhancement
and the drug quantity used to calculate his offense level at sentencing are not
cognizable in a section 3582(c)(2) proceeding. See Dillon v. United States, 560
U.S. 817, 831 (2010).
Gonzalez next contends that his federal sentence should be made to run
concurrent to an earlier imposed state sentence. The district court correctly denied
Gonzalez’s request because motions challenging the manner in which a sentence is
executed must be brought through a 28 U.S.C. § 2241 motion. See United States v.
Giddings, 740 F.2d 770, 771-72 (9th Cir. 1984). Such a motion must be brought in
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the district where Gonzalez is confined—the Central District of California—and
not the district where he was sentenced. See Muth v. Fondren, 676 F.3d 815, 818
(9th Cir. 2012).
Finally, the district court correctly denied Gonzalez’s Rule 60(b) motion
because the motion was, in effect, an unauthorized second or successive motion
under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(a); United States v. Washington,
653 F.3d 1057, 1063 (9th Cir. 2011).
Gonzalez’s motion for judgment is denied.
AFFIRMED.
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