FILED
NOT FOR PUBLICATION OCT 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10013
Plaintiff - Appellee, D.C. No. 5:09-cr-00135-RMW
v.
MEMORANDUM*
MICHAEL DAMAR SHIRLEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Michael Damar Shirley appeals 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 a district court
*
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).
has authority to modify a sentence under section 3582, see United States v.
Wesson, 583 F.3d 728, 730 (9th Cir. 2009), and we affirm.
Shirley contends that he is entitled to a sentence reduction under
Amendment 750 to the Sentencing Guidelines. This contention fails.
Notwithstanding the fact that Shirley was sentenced under a Rule 11(c)(1)(C) plea
agreement that calculated the advisory Sentencing Guidelines range by reference to
U.S.S.G. § 2D1.1, the “applicable” Guidelines range in his case was U.S.S.G.
§ 4B1.1, the Career Offender Guideline. See United States v. Pleasant, 704 F.3d
808, 811-12 (9th Cir.), cert. denied, 134 S. Ct. 824 (2013). Accordingly, the
district court lacked authority to reduce Shirley’s sentence. See id. at 812.
In light of our decision, we need not reach the government’s contention that
Shirley waived his right to file a section 3582 motion in his plea agreement.
Shirley’s unopposed motion to file a late reply brief is granted, and the Clerk
shall file the reply brief submitted on July 14, 2014.
AFFIRMED.
2 13-10013