FILED
DEC 19 2012
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50445
Plaintiff - Appellee, D.C. No. 2:90-CR-00613-R-4
v.
MEMORANDUM *
LENNY LIZALDE, AKA Leonard L.
Lizalde,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted October 11, 2012
Pasadena, California
Before: EBEL,** WARDLAW, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the Tenth Circuit,
sitting by designation.
1
Lenny Lizalde appeals the district court’s denial of his motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 505 to the U.S.
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). For the reasons discussed
below, we conclude that Mr. Lizalde is not eligible for a sentence reduction under
18 U.S.C. § 3582(c)(2), and accordingly, we affirm the district court’s denial of the
motion.
Mr. Lizalde was convicted of five narcotics offenses. His Presentence
Report (“PSR”) provided for a base offense level of 40, based on the amount of
drugs involved in the crimes, with a 4-level increase for Mr. Lizalde’s role in the
offense, leading to a total offense level of 44. The PSR also provided for a
criminal history category of I. Mr. Lizalde’s total offense level and criminal
history category resulted in a life sentence under the Guidelines, which is the
sentence that the PSR recommended. But the district court imposed a 300-month
sentence, comprised of 240 months for Counts 1-4, to be served consecutively to a
term of 60 months for Count 5.
More than 17 years after he was sentenced, Mr. Lizalde filed with the district
court, over the course of two years, three motions arguing that his sentence should
be reduced pursuant to 18 U.S.C. § 3582(c)(2) and in accordance with Amendment
505 to the Guidelines, which made changes to the amount of controlled substances
2
involved in calculating the base level of narcotics offenses contained in U.S.S.G. §
2D1.1. The district court denied all three of these motions. Mr. Lizalde appeals
the district court’s denial of his third motion.1
We have jurisdiction to consider this appeal under 28 U.S.C. § 1291. “[W]e
review the discretionary denial of a motion to reduce a sentence under § 3582(c)(2)
for abuse of discretion.” United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir.
2009) (per curium). But, like all “questions of statutory interpretation and
Sentencing Guidelines interpretation,” we review de novo “the legal question
whether the pertinent guidelines amendment was applicable to the defendant’s
sentence.” Id. (internal citation omitted).
Generally, a “court may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). But there is an exception to this rule.
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . the court may reduce the
term of imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.
1
The Government argues that Mr. Lizalde may not appeal the denial of this third
motion because he failed to timely appeal the denials of his two prior motions for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 505. Because we
conclude that Mr. Lizalde was not eligible for any sentence reduction under 18 U.S.C. §
3582(c)(2), we do not address whether Mr. Lizalde waived his right to appeal the denial
of the third motion.
3
Id. § 3582(c)(2). “The Sentencing Commission has issued . . . a policy statement”
under 18 U.S.C. § 3582(c)(2) “in the form of U.S.S.G. § 1B1.10.” United States v.
Leniear, 574 F.3d 668, 674 (9th Cir. 2009).
The U.S. Supreme Court has explained that § 3582(c)(2) “establishes a
two-step inquiry.” Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). Under
this inquiry, a court must (1) determine the scope of the reduction, if any,
authorized by § 1B1.10, and then (2) consider whether the authorized reduction is
warranted according to the applicable § 3553(a) factors. Id. A defendant is not
eligible for a sentence reduction under § 3582(c)(2) if, under the first step of the
inquiry, such a reduction would be inconsistent with U.S.S.G. § 1B1.10. See
Leniear, 574 F.3d at 674 (concluding that a “district court did not err in concluding
that it lacked jurisdiction . . . to modify [a defendant’s] sentence” pursuant to 18
U.S.C. § 3582(c)(2) and Amendment 706, “[b]ecause Amendment 706 has not
lowered the sentencing range applicable to [the defendant], and because reducing
his prison term would not be consistent with U.S.S.G. § 1B1.10”).
Under the first step prescribed by the Supreme Court, in determining
“whether, and to what extent, a reduction in the defendant’s term of imprisonment”
is warranted, U.S.S.G. § 1B1.10(b)(1) explains that “the court shall determine the
amended guideline range that would have been applicable to the defendant if the
4
[relevant] amendment(s) to the guidelines . . . had been in effect at the time the
defendant was sentenced.” But “[i]n making such determination, the court shall
substitute only the [relevant] amendments . . . for the corresponding guideline
provisions that were applied when the defendant was sentenced and shall leave all
other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1).
Importantly, “the court shall not reduce the defendant’s term of
imprisonment . . . to a term that is less than the minimum of the amended guideline
range.”2 Id. § 1B1.10(b)(2) (emphasis added). Indeed, the application note to §
1B1.10(b)(2) clarifies that “the amended guideline range determined under
subsection (b)(1) . . . limit[s] the extent to which the court may reduce the
defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy
statement,” whether the term of imprisonment imposed was within or outside of
the Guideline range applicable to the defendant at the time of sentencing. Id. §
1B1.10 cmt. n.3.
Following Mr. Lizalde’s sentence, Amendment 505 changed the base
2
There is an exception to this limitation. A defendant may receive a sentence
reduction below the amended Guideline range only if the defendant originally received a
sentence lower than the applicable Guideline range because of “substantial assistance to
authorities,” in which case a comparable reduction “may be appropriate.” U.S.S.G. §
1B1.10(b)(2)(B). There is no indication that Mr. Lizalde received a sentence below the
original Guideline range because of substantial assistance to authorities; thus, this
exception is not applicable.
5
offense level for different quantities of cocaine, as set forth in U.S.S.G. § 2D1.1.
For Mr. Lizalde’s offenses, this amendment results in a base offense level of 38
instead of 40. With the 4-level adjustment for Mr. Lizalde’s role in the offense, his
total offense level would be 42, while the criminal history category of I would
remain the same. After substituting Amendment 505 “for the corresponding
guideline provisions that were applied when the defendant was sentenced and . . .
leav[ing] all other guideline application decisions unaffected,” U.S.S.G. §
1B1.10(b)(1), the amended Guideline range would be 360 months to life.3
Because Mr. Lizalde’s sentence is already less than the amended Guideline
range, any further reduction in his sentence would be inconsistent with U.S.S.G. §
1B1.10(b)(2) and 18 U.S.C. § 3582(c)(2).
AFFIRMED.
3
Mr. Lizalde argues that, because his amended base offense level would be 38,
that the amended Guideline range would be 235–293 months. But Mr. Lizalde provides
us with no basis to disregard the 4-level adjustment for his role in the offense. Indeed,
such an approach would directly conflict with U.S.S.G. § 1B1.10(b)(1), which requires
the court to “leave all other guideline application decisions unaffected” when calculating
the amended Guideline range.
6