FILED
NOT FOR PUBLICATION
JAN 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50358
Plaintiff - Appellee, D.C. No. 2:90-cr-00877-SVW-1
v.
MEMORANDUM*
JORGE ROCA-SUAREZ, AKA George
Roca, AKA Jorge Roca,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted January 7, 2016**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and MOTZ,*** Senior
District Judge.
*
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).
***
The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Page 2 of 3
Jorge Roca-Suarez appeals from the district court’s order denying his motion
to modify his sentence under 18 U.S.C. § 3582(c)(2). We review the district
court’s determination that it lacked jurisdiction to modify Roca-Suarez’s sentence
de novo, see United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009), and we
affirm.
In sentencing Roca-Suarez for the drug-conspiracy conviction, the district
court expressly relied on the presentence report (PSR), which calculated Roca-
Suarez’s base offense level by treating the cocaine paste involved in the offense as
“cocaine” rather than “cocaine base.” That was consistent with our precedent and
the Sentencing Guidelines commentary, both of which defined “cocaine base” to
refer only to crack cocaine. See United States v. Shaw, 936 F.2d 412, 415 (9th Cir.
1991); U.S.S.G. § 2D1.1, cmt. n.10, Drug Equivalency Tables (1992). Because
Roca-Suarez’s sentencing range was computed using the more lenient quantity
figures for cocaine, rather than those applicable to cocaine base, Amendment 750
did not lower the sentencing range applicable to his conviction. Roca-Suarez’s
argument that DePierre v. United States, 131 S. Ct. 2225 (2011), made cocaine
paste and crack cocaine “legally interchangeable” for purposes of calculating the
applicable Guidelines range is mistaken. DePierre construed the meaning of
“cocaine base” under 21 U.S.C. § 841(b)(1), and in doing so expressly recognized
Page 3 of 3
that “coca paste” is treated differently under the Guidelines. DePierre, 131 S. Ct.
at 2236–37.
Moreover, even if the district court had calculated the Guidelines range by
treating the cocaine paste as cocaine base, Roca-Suarez would nevertheless be
ineligible for a sentence reduction based on the quantities of cocaine paste involved
in his conviction. Roca-Suarez was convicted of conspiring to manufacture tens of
thousands of kilograms of cocaine paste. Under the amended Drug Quantity Table,
those quantities would trigger a base offense level of 38, which would result in a
higher sentencing range than that originally calculated for Roca-Suarez. See
U.S.S.G. §§ 2D1.1(c)(1), 5A (2011). Roca-Suarez’s argument that the sentencing
court failed to make adequate factual findings with respect to drug quantity lacks
merit. See United States v. Gadson, 763 F.3d 1189, 1220 (9th Cir. 2014).
Because Amendment 750 did not lower Roca-Suarez’s sentencing range, the
district court lacked the authority to reduce his sentence. See 18 U.S.C.
§ 3582(c)(2); Leniear, 574 F.3d at 674. Consequently, it had no cause to consider
the 18 U.S.C. § 3553(a) factors. See Dillon v. United States, 560 U.S. 817, 826–27
(2010).
AFFIRMED.