NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30283
Plaintiff-Appellee, D.C. No.
2:09-cr-00062-RSM-1
v.
QUY DINH NGUYEN, AKA The Boss, MEMORANDUM*
AKA The Godfather, AKA The Old Man,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted February 7, 2018**
Seattle, Washington
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Quy Dinh Nguyen appeals the district court’s denial of his motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.
Nguyen pled guilty to conspiracy to manufacture marijuana and was
*
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).
sentenced to 304 months imprisonment, to run concurrently with his identical
Washington state court sentence for second degree murder and conspiracy to
commit leading organized crime. In July 2016, about four years into his sentence,
Nguyen filed a motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2). He argued that Amendment 782 to the United States Sentencing
Guidelines resulted in a two-level decrease to his total offense level, thereby
reducing his guideline range by approximately thirty-five months, from 155–188
months to 121–151 months. Nguyen further contended that a sentencing reduction
was warranted in light of the factors enumerated in 18 U.S.C. § 3553(a). The
district court denied the motion after concluding, inter alia, that Nguyen’s sentence
was not “based on” a subsequently lowered guideline range as required for a
reduction under section 3582(c)(2). Nguyen timely appealed.
“In deciding whether to reduce a sentence under § 3582(c)(2), a district court
first determines a defendant’s eligibility for a reduction.”1 United States v.
1
A defendant’s eligibility for a reduction of sentence is a jurisdictional prerequisite
to granting a motion for reduction of sentence under section 3582(c)(2). United
States v. Davis, 825 F.3d 1014, 1028 n.14 (9th Cir. 2016) (en banc); United States
v. Trujillo, 713 F.3d 1003, 1006 (9th Cir. 2013). Although we generally review the
denial of a motion for reduction of sentence for abuse of discretion, United States
v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010), the question “[w]hether a district
court has jurisdiction to modify a defendant’s sentence under 18 U.S.C.
§ 3582(c)(2) is a legal question that we review de novo,” Davis, 825 F.3d at 1019
n.6.
2
Rodriguez-Soriano, 855 F.3d 1040, 1042 (9th Cir. 2017) (internal citation omitted).
To be eligible for a sentencing reduction under section 3582(c)(2), “a defendant
must show . . . that his sentence was ‘based on’ a guideline range that has since
been lowered.” Id. (quoting 18 U.S.C. § 3582(c)(2)). A sentence is not “based on”
a subsequently lowered guideline range if the guideline range “‘played no role’ in
the district court’s determination of the appropriate sentence.” Id. at 1043 (quoting
United States v. Davis, 825 F.3d 1014, 1023 (9th Cir. 2016) (en banc)).
Nguyen’s sentence was not “based on” his subsequently lowered guideline
range of 155 to 188 months. First, the sentencing recommendation that the parties
agreed to in the federal plea agreement was not “clearly rooted in the Guidelines.”
Davis, 825 F.3d at 1027. The parties agreed to recommend a sentence “identical to
the sentence to be imposed in the related [state] case.” The state court sentence, in
turn, was the sentence recommended by the State in the state plea agreement and
was tied to the state sentencing range. The federal plea agreement appended the
state plea agreement “to reflect the full extent of the promises and consideration
provided to [Nguyen].”
Second, at the federal sentencing hearing, the district court explained that
“[t]he recommended sentence by both sides, the 304 months, is obviously tied to
what happened in the state court process. The parties bargained for that to run
concurrently with each other, and the court has no objection to making the
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sentences concurrent” (emphasis added). Although the district court previously
calculated Nguyen’s guideline range as it was required to do, the court did not
mention the guidelines again. See Rodriguez-Soriano, 855 F.3d at 1044.
Third, the district court confirmed its reasoning in its written “Statement of
Reasons.” In response to the prompt, “[e]xplain the facts justifying a sentence
outside the advisory guideline system,” the court explained: “Pursuant to the plea
agreement . . . the parties agreed to recommend 304 months custody, the same
sentence the defendant received in [state court]. The Court concurred with the plea
agreement and imposed a sentence of 304 months custody, an upward variance
from the established guideline range.”
Accordingly, we agree with the district court that “[Nguyen’s] sentence of
304 months was not, in any way, based on or even related to the original federal
sentencing range of 151 to 188 months.” Because the district court lacked
jurisdiction to grant Nguyen’s motion for reduction of sentence, we do not address
Nguyen’s arguments as to the section 3553(a) factors.
AFFIRMED.
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