United States v. Donald Hogan

FILED
NOT FOR PUBLICATION APR 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10312
Plaintiff - Appellee, D.C. No. 3:94-cr-00044-ECR
v.
MEMORANDUM*
DONALD LEROY HOGAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted April 16, 2013**
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Donald Leroy Hogan appeals pro se from the district court’s order denying
his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. 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).
Hogan contends that Amendment 591 to the United States Sentencing
Guidelines authorized the district court to resentence him under section 3582(c)(2).
We review de novo whether the court had jurisdiction to modify Hogan’s sentence.
See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009).
The record reflects that Hogan’s base offense level was calculated under
U.S.S.G. § 2D1.1(c)(1), which was not affected by Amendment 591. See U.S.S.G.
app. C, amend. 591 (Supp. 2003); United States v. McEnry, 659 F.3d 893, 898-99
(9th Cir. 2011) (discussing changes made by Amendment 591). Because
Amendment 591 did not lower Hogan’s advisory Sentencing Guidelines range, the
district court lacked jurisdiction to reduce his sentence. See 18 U.S.C.
§ 3582(c)(2); Leniear, 574 F.3d at 674.
In light of this conclusion, we do not reach Hogan’s remaining claims.
AFFIRMED.
2 12-10312