FILED
NOT FOR PUBLICATION NOV 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10406
Plaintiff-Appellant, D.C. No. 1:09-cr-00299-LJO
v.
MEMORANDUM*
JESUS LOPEZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
The government appeals from the district court’s order granting Jesus
Lopez’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
*
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).
The government argues that the district court lacked authority to reduce
Lopez’s sentence to 151 months. In light of our recent decision in United States v.
Ornelas, 825 F.3d 548 (9th Cir. 2016), we agree. In determining the “applicable
guidelines range” under U.S.S.G. § 1B1.10, the district court improperly
considered the downward departure that Lopez received at his original sentencing
hearing under section 4A1.3(b). See id. at 554-55. The district court should have
used the amended base offense level of 33 paired with the pre-departure criminal
history category of III, which results in an amended guidelines range of 168 to 210
months. Although Lopez disagrees with the holding in Ornelas, he concedes that it
precludes a reduction of his sentence below 168 months. See U.S.S.G. §
1B1.10(b)(2)(A); Ornelas, 825 F.3d at 555.
This court has already rejected Lopez’s argument that this application of
U.S.S.G. § 1B1.10(b) violates the Ex Post Facto Clause of the United States
Constitution. See United States v. Waters, 771 F.3d 679, 680-81 (9th Cir. 2014);
see also Ornelas, 825 F.3d at 555 n.9 (noting rejection). Accordingly, we vacate
and remand for resentencing consistent with our decision in Ornelas.
VACATED and REMANDED for resentencing.
2 15-10406