United States v. John McGee

FILED
NOT FOR PUBLICATION AUG 01 2013

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. 12-50119

Plaintiff - Appellee, D.C. No. 2:07-cr-01208-AHM

v.
MEMORANDUM *
JOHN THONARS MCGEE,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding

Submitted July 24, 2013 **

Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

John Thonars McGee appeals 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. We review de novo whether a district court has authority to

*
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).
modify a sentence under section 3582(c)(2). See United States v. Pleasant, 704

F.3d 808, 810 (9th Cir. 2013). We affirm.

McGee contends that he is eligible for a sentence reduction under

Amendment 750 to the Guidelines, which lowered the offense levels for crimes

involving cocaine base under U.S.S.G. § 2D1.1. McGee acknowledges that the

district court calculated his advisory range under U.S.S.G. § 4B1.1, the career

offender guideline, and that career offenders are not eligible for a sentence

reduction under section 3582(c)(2). See United States v. Wesson, 583 F.3d 728,

731-32 (9th Cir. 2009). He contends, however, that he is entitled to a reduction

because the court relied in part on U.S.S.G. § 2D1.1 in varying downward. The

record reflects that the court did not rely on U.S.S.G. § 2D1.1 in varying

downward. Even if it had, a reduction in McGee’s sentence would not be

consistent with U.S.S.G. § 1B1.10(a)(1), which establishes that the applicable

Guidelines range is the pre-departure and pre-variance Guidelines range. See

U.S.S.G. § 1B1.10 cmt. n.1(A) (2011); Pleasant, 704 F.3d at 812. Accordingly,

the district court lacked authority to reduce McGee’s sentence. See id.

AFFIRMED.

2 12-50119