United States v. Randy Mitchell

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                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 20 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50509

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00571-CAS

  v.
                                                 MEMORANDUM*
RANDY MITCHELL, a.k.a. Frog,

               Defendant - Appellant.


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

                            Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, Circuit Judges.

       Randy Mitchell 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 has authority to

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

          *
             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).
F.3d 808, 810 (9th Cir.), cert. denied, 134 S. Ct. 824 (2013), and we affirm.

      Mitchell contends that he is eligible for a sentence reduction under

Amendment 750 to the Sentencing Guidelines. This contention fails because

Mitchell was sentenced as a Career Offender under U.S.S.G. § 4B1.1. Thus, his

sentence was not “based on” a Guidelines range that was lowered by the

amendment. See 18 U.S.C. § 3582(c)(2); United States v. Charles, 749 F.3d 767,

770-71 (9th Cir. 2014). Morever, a sentence reduction would not be consistent

with U.S.S.G. § 1B1.10(a)(1), the applicable policy statement, because the

applicable Guidelines here are the Career Offender Guidelines. See 18 U.S.C.

§ 3582(c)(2); Pleasant, 704 F.3d at 811-12. This is true even though the district

court varied downward from the Career Offender range at sentencing. See

Pleasant, 704 F.3d at 812. Mitchell’s contention that the district court erred when

it determined at sentencing that he was a Career Offender is not cognizable in a

section 3582(c)(2) proceeding. See United States v. Waters, 648 F.3d 1114, 1118

(9th Cir. 2011).

      AFFIRMED.




                                          2                                     13-50509