United States v. Jose Aguilar, Jr.

FILED NOT FOR PUBLICATION MAR 21 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-30072 Plaintiff - Appellee, D.C. No. 1:11-cr-00004-BMM v. MEMORANDUM* JOSE AGUILAR, Jr., Defendant - Appellant. Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding Submitted March 15, 2016** Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges. Jose Aguilar, Jr., 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 the 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. Leniear, 574 F.3d 668, 672 (9th Cir. 2009), and we affirm. Aguilar contends that he is eligible for a sentence reduction under Amendment 782 to the Sentencing Guidelines. The district court properly concluded that Aguilar is ineligible for a reduction because his 168-month sentence is already at the bottom of his amended guideline range. See U.S.S.G. § 1B1.10(b)(2)(A) (district court may not reduce a sentence “to a term that is less than the minimum of the amended guideline range”); United States v. Davis, 739 F.3d 1222, 1224 (9th Cir. 2014). Contrary to Aguilar’s contention, his “applicable guideline range” is determined without consideration of any departure or variance applied at his original sentencing. See U.S.S.G. § 1B1.10 cmt. n.1(A); United States v. Pleasant, 704 F.3d 808, 812 (9th Cir. 2013). AFFIRMED. 2 15-30072