NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30140
Plaintiff-Appellee, D.C. No. 3:97-cr-00068-HRH-1
v.
MEMORANDUM*
CYRUS D.A. BRASWELL, AKA Cyrus
Dennis Braswell,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Cyrus D.A. Braswell appeals pro se from the district court’s order denying
his motion for a retroactive sentence reduction under the First Step Act of 2018
and granting 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).
Braswell first contends that, under § 3582(c)(2), the district court was
required to resentence him to a term within the 188-235 month amended
Guidelines range resulting from the application of Amendment 750. The district
court did not abuse its discretion by reducing Braswell’s sentence to time served.
See Dillon v. United States, 560 U.S. 817, 827 (2010). As the district court
correctly noted, Braswell had already served 260 months of his sentence—a period
longer than the high end of the amended Guidelines range—and therefore could
not receive a sentence reduction below time served. See U.S.S.G.
§ 1B1.10(b)(2)(C) (“In no event may the reduced term of imprisonment be less
than the term of imprisonment the defendant has already served.”).
Braswell next contends that the district court erred by denying his motion for
sentence reduction under § 404(b) of the First Step Act, which, inter alia, permits
retroactive application of § 2 of the Fair Sentencing Act of 2010 for certain crack
cocaine offenses. See United States v. Kelley, 962 F.3d 470, 472 (9th Cir. 2020).
The district court did not abuse its discretion by concluding that Braswell was not
entitled to relief under the First Step Act. See id. As the court correctly noted, the
mandatory minimum sentence and Guidelines range applicable to Braswell were
unchanged by the retroactive application of the Fair Sentencing Act because his
original offense involved 1,942 grams of crack cocaine. See id. (noting that § 2
requires that a covered offense involve 280 or more grams of crack cocaine, rather
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than only 50 or more grams, in order to trigger a sentence of 10 years to life).
Moreover, contrary to Braswell’s contentions, the First Step Act does not authorize
a plenary resentencing at which the district court can reconsider its original
sentencing determinations. See id. at 475.
Braswell also challenges the district court’s separate order denying, as an
unauthorized second or successive motion under 28 U.S.C. § 2255, his motion to
dismiss the indictment. Braswell previously sought to challenge this order, but this
court denied him a certificate of appealability in Appeal No. 19-35642. Braswell’s
contentions regarding the sufficiency of the indictment are therefore not properly
before us, and we will not consider them.
We also decline to consider Braswell’s remaining arguments as not properly
before this court.
All pending motions are denied.
AFFIRMED.
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