FILED
NOT FOR PUBLICATION DEC 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30054
Plaintiff-Appellee, D.C. No. 2:12-cr-06053-EFS
v.
MEMORANDUM*
FIDEL RIOS, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Fidel Rios, Jr., appeals pro se from the district court’s order denying his
motion to appoint counsel to pursue 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).
Rios contends that he is entitled to a sentence reduction under Amendment
782. The district court determined that Rios was not eligible for a sentence
reduction, and denied his motion to appoint counsel, because his sentence was
based on the parties’ Federal Rule of Criminal Procedure 11(c)(1)(C) plea
agreement, rather than a Guidelines range that has been lowered by Amendment
782. The district court did not have the benefit of our decision in United States v.
Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), which was decided while Rios’s
appeal was pending. Applying Davis, we conclude that Rios is eligible for a
sentence reduction.
Rios’s Rule 11(c)(1)(C) plea agreement required the district court to
determine Rios’s applicable Guidelines range at the time of sentencing, stipulated
to a drug quantity and corresponding base offense level, and provided that Rios
was eligible for a three-level reduction for acceptance of responsibility.
Furthermore, the sentencing court’s statement of reasons shows that the court
calculated a Guidelines range of 78-97 months, noted that Rios’s 75-month
sentence was below-Guidelines, and found that sentence appropriate in light of the
18 U.S.C. § 3553(a) sentencing factors. Thus, as in Davis, we conclude that Rios’s
sentence was based on the Guidelines and that he is eligible for a sentence
reduction. See id. at 1027-28. Accordingly, we vacate and remand for the district
2 15-30054
court to appoint counsel and “consider whether the authorized reduction is
warranted, either in whole or in part, according to the factors set forth in
§ 3553(a).” Dillon v. United States, 560 U.S. 817, 826 (2010).
In light of this disposition, we decline to consider Rios’s remaining claims
of error.
VACATED and REMANDED.
3 15-30054