FILED
NOT FOR PUBLICATION
NOV 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30251
Plaintiff-Appellee, D.C. No. 3:10-cr-00396-SI-3
v.
MEMORANDUM*
ALEKSANDR MALIMON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted November 8, 2017
Portland, Oregon
Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.
Aleksandr Malimon appeals the district court’s denial of his 18 U.S.C. §
3582(c)(2) motion. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
At oral argument, the government conceded that the district court’s
“anticipatory reduction,” granted at Ordonez’s original sentencing in anticipation
of a Guidelines-lowering amendment that had yet to take effect, was not
encompassed in the Guidelines calculation under U.S.S.G. § 1B1.1(a) but was
instead either a variance or departure. It further conceded that under U.S.S.G. §
1B1.10, the “applicable guidelines range” calculation includes only the U.S.S.G. §
1B1.1(a) factors and expressly excludes variances and departures. See U.S.S.G. §
1B1.10 cmt. 1(A). For this reason, Malimon has not been granted a reduction under
18 U.S.C. § 3582(c)(2) and continues to be eligible for a reduction. Malimon
preserved the above argument by raising it in his written motion to modify
sentence. The error was not harmless. See U.S.S.G. § 1B1.10 cmt. 1(B)(iii). We
therefore reverse and remand to the district court to determine whether and to what
extent a reduction in sentence is warranted. On remand, the district court may take
into account, in determining the sentence to be imposed, Malimon’s post-
sentencing conduct. See id.
REVERSED AND REMANDED.
2