NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 12-30152 U .S. C O U R T OF APPE ALS
Plaintiff - Appellee, D.C. No. 3:02-cr-00100-HRH
v.
RICARDO CRUZAGOSTO, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Ricardo Cruzagosto appeals from the district court’s order denying his
motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cruzagosto contends that he is entitled to a sentence reduction under
Amendments 748 and 750 to the Sentencing Guidelines. We review de novo.
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). The district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
correctly determined that it was without authority to reduce Cruzagosto’s 168-
month sentence, as that sentence was at the bottom of the amended advisory
Sentencing Guidelines range. See 18 U.S.C. § 3582(c)(2) (permitting reduction of
sentence only where “such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission”); U.S.S.G. § 1B1.10(b)(2)(A)
(“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement to a term that is less than the minimum of
the amended guideline range”).
Cruzagosto nonetheless argues that the district court should have treated his
four-level variance as a “guideline application decision[]” entitled to consideration
under U.S.S.G. § 1B1.10(b)(1). The language of and commentary to section
1B1.10(b)(2)(A) squarely foreclose his position. See U.S.S.G. § 1B1.10(b)(2)(A)
& cmt. n.3 (subsection (b)(2)(A) applies even where the district court imposed a
downward variance at sentencing).
AFFIRMED.
2 12-30152