FILED
NOT FOR PUBLICATION JUN 1 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50273
Plaintiff-Appellee, D.C. No. 3:92-cr-01151-H
v.
MEMORANDUM*
OSCAR HUERTA-MACIAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Oscar Huerta-Macias appeals pro se 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 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).
Huerta-Macias contends that the district court erred by denying his motion
for a sentence reduction under Amendment 782 to the Guidelines. Because
Amendment 782 did not lower Huerta-Macias’s Guidelines range, the district court
correctly concluded that he was ineligible for a sentence reduction. See 18 U.S.C.
§ 3582(c)(2); Leniear, 574 F.3d at 673-74. Moreover, contrary to Huerta-Macias’s
argument, the court could not reduce his sentence under 18 U.S.C. § 3553(a)(6).
See Dillon v. United States, 560 U.S. 817, 826 (2010) (court may consider the
section 3553(a) factors only if it first determines that a reduction is authorized).
In light of Huerta-Macias’s statutory ineligibility for a reduction, his
argument that U.S.S.G. § 1B1.10 violates the Ex Post Facto Clause and separation
of powers principles is misplaced. In any event, we have previously rejected these
contentions. See United States v. Waters, 771 F.3d 679, 681 (9th Cir. 2014);
United States v. Davis, 739 F.3d 1222, 1225-26 (9th Cir. 2014).
To the extent that Huerta-Macias asks this court to apply the rule of lenity
because the drug quantity calculated by the court at his original sentencing was
ambiguous, we decline to do so. The record does not reflect any ambiguity in the
drug quantity found by the court and, even if it did, claims of sentencing error are
not cognizable in a section 3582(c)(2) proceeding. See Dillon, 560 U.S. at 831.
AFFIRMED.
2 16-50273