FILED
NOT FOR PUBLICATION
JUL 29 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30048
Plaintiff - Appellee, D.C. No. 1:11-cr-00127-SPW
v.
MEMORANDUM*
HOWARD JAY BONIFANT,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted July 27, 2016**
Before: PREGERSON, LEAVY, and OWENS, Circuit Judges.
Howard Jay Bonifant 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, and we affirm.
*
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).
Bonifant contends that the district court erred in holding that it did not have
the authority to reduce his sentence. We review de novo whether a defendant is
eligible for a sentence reduction. See United States v. Leniear, 574 F.3d 668, 672
(9th Cir. 2009). Although the district court misstated Bonifant’s total offense
level, the court was correct that Amendment 782 did not lower Bonifant’s
Guidelines range. Contrary to Bonifant’s argument, his total offense level after the
amendment was 40. See U.S.S.G. § 1B1.10 cmt. n.1(A); United States v. Ornelas,
__F.3d__ (9th Cir. 2016) (holding that the base offense level in a motion for
reduction of sentence under Amendment 782 is determined without taking into
account downward departures); United States v. Pleasant, 704 F.3d 808, 812 (9th
Cir. 2013), overruled on other grounds by United States v. Davis, __F.3d__ (9th
Cir. 2016) (en banc). Because a total offense level of 40 and a criminal history
category of III yields a Guidelines range of 360 months-life, the same range that
applied before Amendment 782, the district court properly held that it lacked
authority to lower Bonifant’s sentence. See 18 U.S.C. § 3582(c)(2); Pleasant, 704
F.3d at 810.
AFFIRMED.
2 15-30048