NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10562
Plaintiff-Appellee, D.C. No. 4:91-cr-00392-CKJ
v.
MEMORANDUM*
LYLE GERALD JOHNS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Lyle Gerald Johns 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.
Johns contends that his sentence violates Apprendi v. New Jersey, 530 U.S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
466 (2000), and that, prior to ruling on his motion for a sentence reduction under
Amendment 782 to the Sentencing Guidelines, the district court should have
corrected this error by recalculating the drug quantities attributable to him. We
review de novo whether a district court had authority to modify a sentence under
section 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir.
2009). As the district court properly determined, Johns’s Apprendi claim cannot
be raised in a 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817,
831 (2010) (alleged sentencing errors are “outside the scope of the proceeding
authorized by § 3582(c)(2)”). Moreover, Johns is ineligible for a sentence
reduction because Amendment 782 did not lower his applicable sentencing range.
See 18 U.S.C. § 3582(c)(2); Leniear, 574 F.3d at 673-74.
Johns’s motion for release pending appeal is denied as moot.
AFFIRMED.
2 15-10562