United States v. Miguel Alvarez-Adame

FILED
NOT FOR PUBLICATION MAR 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50073
Plaintiff - Appellee, D.C. No. 3:07-cr-00059-LAB-1
v.
MEMORANDUM*
MIGUEL ALVAREZ-ADAME,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 18, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Miguel Alvarez-Adame appeals pro se from the district court’s order
denying his pro se motion for a sentence reduction under 18 U.S.C. § 3582(c). 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).
Alvarez-Adame contends that his sentence was still pending on appeal when
United States Sentencing Guidelines Amendment 754 became effective and the
district court therefore erred when it held that it did not have the authority to
reduce his sentence under 18 U.S.C. § 3582(c) because Amendment 754 does not
apply retroactively. We review de novo whether a district court has the authority
to reduce a sentence under 18 U.S.C. § 3582. United States v. Leniear, 574 F.3d
668, 672 (9th Cir. 2009).
The district court did not err. Substantive amendments to the Guidelines that
occur after sentencing may not be applied retroactively to reduce a sentence under
§ 3582(c) unless the Sentencing Commission has made the amendments
retroactive. Freeman v. United States, 131 S. Ct. 2685, 2690-91 (2011) (plurality
opinion); Dillon v. United States, 130 S. Ct. 2683, 2690-91 (2010); see also United
States v. Diaz-Cardenas, 351 F.3d 404, 409 (9th Cir. 2003) (holding that
substantive amendments to the Guidelines that occur between the date of
sentencing and the resolution of an appeal have no retroactive effect unless the
Sentencing Commission designates them as retroactive). The Sentencing
Commission makes an amendment retroactive by referencing the amendment in the
policy statement contained in U.S.S.G. § 1B1.10. Diaz-Cardenas, 351 F.3d at 409.
Amendment 754 became effective on November 1, 2011, after Alvarez-Adame
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was re-sentenced, and the Sentencing Commission has not made the amendment
retroactive. See United States Sentencing Commission, Guidelines Manual,
Appendix C–Vol III, Amendment 754 at 406; U.S.S.G. § 1B1.10(a), (c).
Accordingly, the district court correctly determined that it did not have the
authority to reduce Alavarez-Adame’s sentence.
AFFIRMED.
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