United States v. Romo ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-321
D.C. No.
Plaintiff - Appellee, 1:13-cr-00113-SPW-1
District of Montana, Billings
v.
MEMORANDUM*
FELIS LUSIANO ROMO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted December 4, 2023
Portland, Oregon
Before: BERZON, NGUYEN, and MILLER, Circuit Judges.
Felis Lusiano Romo appeals the district court’s denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). We have jurisdiction under
28 U.S.C. § 1291. Reviewing for abuse of discretion, see United States v. Roper,
72 F.4th 1097, 1100 (9th Cir. 2023), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Romo contends that the district court failed to comply with 18 U.S.C.
§ 3553(a) because “the sentence he is currently serving would constitute an upward
departure from the applicable guideline range” based on his current criminal
history and the court “did not articulate a reason” for the deviation. The district
court acknowledged that “the changes in his criminal history . . . could have
impacted his sentencing advisory guidelines range.” It then explained that the
§ 3553(a) factors would not be served by a lower sentence due to the seriousness of
Romo’s heavy involvement in a violent and wide-reaching drug conspiracy and the
fact that his sentence had already been reduced pursuant to an amendment to the
sentencing guidelines. These observations were sufficiently responsive to Romo’s
argument that the court should consider in its § 3553(a) analysis that his guidelines
range would be lower if he had been sentenced at the time of the motion.
The district court “adequately ‘considered [Romo’s] motion and had a
reasoned basis for exercising [its] legal decisionmaking authority,’” which “is all
that the law requires.” United States v. Wright, 46 F.4th 938, 952–53 (9th Cir.
2022) (cleaned up) (quoting Chavez-Meza v. United States, 138 S. Ct. 1959, 1967
(2018)). To the extent the court concluded, contrary to Roper, that changes in state
law cannot serve as an “extraordinary and compelling” reason for a sentence
reduction, 18 U.S.C. § 3582(c)(1)(A)(i), any such error was harmless. See Wright,
46 F.4th at 947–48.
2 23-321
AFFIRMED.
3 23-321