United States v. Enrique Quintero

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10009
Plaintiff-Appellee, D.C. No. 5:11-cr-00711-EJD-1
v.
MEMORANDUM*
ENRIQUE LOPEZ QUINTERO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted March 6, 2020**
Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.
Enrique Lopez Quintero appeals pro se from the district court’s order
denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We
have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the district
court had authority to reduce Quintero’s sentence under section 3582, see United
*
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).
States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009), and we affirm.
Quintero contends that he is eligible for a sentence reduction because
Amendment 782 to the Sentencing Guidelines, which amended the drug quantity
tables in U.S.S.G § 2D1.1, lowered the Guidelines range contained in his binding
plea agreement. However, even assuming arguendo that Quintero’s sentence was
“based on” the Guidelines range calculated in the plea agreement, he would still
not be eligible for a reduction because Amendment 782 did not lower the
Guidelines range “applicable to” him. See U.S.S.G. § 1B1.10(a)(2) (sentence
reduction is not authorized under section 3582(c)(2) unless a listed amendment
lowers the Guidelines range “applicable to” the defendant). The “applicable”
Guidelines range is the correctly calculated, pre-variance range. See U.S.S.G.
§ 1B1.10(a)(1) & cmt. n.1(A); United States v. Pleasant, 704 F.3d 808, 811-12
(9th Cir. 2013), overruled on other grounds by United States v. Davis, 825 F.3d
1014 (9th Cir. 2016). Here, there is no dispute that Quintero was properly
determined to be a career offender under the Guidelines. Thus, as the district court
correctly concluded, the applicable range was the career offender range. Because
that range was not lowered by Amendment 782, Quintero is not eligible for a
sentence reduction. See 18 U.S.C. § 3582(c)(2); Pleasant, 704 F.3d at 812.
AFFIRMED.
2 19-10009