United States v. Toijuana Collins

FILED
NOT FOR PUBLICATION DEC 14 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50182
Plaintiff - Appellee, D.C. No. 2:99-cr-01137-R-1
v.
MEMORANDUM *
TOIJUANA GENE COLLINS, aka
TOIJUANA COLLINS and G-RED,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted December 10, 2009 **
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Toijuana Gene Collins appeals from the district court’s order denying his
motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction
pursuant to 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Collins contends that the district court erred in finding that it did not have
authority under § 3582(c)(2) to modify his sentence. Because Collins was
sentenced based on the mandatory minimum under 21 U.S.C. § 841(b)(1)(A) for a
defendant with his criminal history, and not based on the Sentencing Guidelines,
he is ineligible for the modification that he seeks. His case is squarely controlled
by United States v. Paulk, 569 F.3d 1094 (9th Cir. 2009) (per curiam), in which we
held that a defendant with a sentence “based on the statutory mandatory minimum
under 21 U.S.C. § 841” is “not entitled to a reduction [under § 3582(c)(2)] because
his sentence was not ‘based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.’” See Paulk, 569 F. 3d at 1095 (quoting
18 U.S.C. §3582(c)(2)); see also U.S.S.G § 1B1.10 cmt. n.1(A) (2008) (“[A]
reduction in the defendant's term of imprisonment is not authorized under 18
U.S.C. § 3582(c)(2) . . . if . . . the amendment does not have the effect of lowering
the defendant’s applicable guidelines range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment)”).
AFFIRMED.