FILED
NOT FOR PUBLICATION OCT 31 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30366
Plaintiff-Appellee, D.C. No. 4:05-cr-00130-SEH
v.
MEMORANDUM*
SOLOMON BITTON SIMTOB, a.k.a.
Simon Simtob,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and GOULD, Circuit Judges.
Solomon Bitton Simtob appeals from the district court’s order denying his
motion for sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction
under 28 U.S.C. § 1291. We may affirm on any ground supported by the record,
*
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).
United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006), and we affirm.
Simtob contends that, in light of the 18 U.S.C. § 3553(a) sentencing factors,
the district court abused its discretion by denying his motion for a sentence
reduction. We do not reach this claim because, reviewing de novo, we agree with
the government that Simtob was ineligible for a reduction. See United States v.
Leniear, 574 F.3d 668, 672 (9th Cir. 2009).
As Simtob concedes, and the presentence report reflects, the applicable
guideline range in his case is the statutory mandatory minimum of 120 months.
See U.S.S.G. § 5G1.1(b) (where a mandatory minimum sentence is greater than the
maximum of the applicable guideline range, the mandatory minimum “shall be the
guideline sentence”). Thus, Amendment 782 to the Sentencing Guidelines did not
have the effect of lowering Simtob’s guideline range and the district court had no
authority to lower his sentence. See U.S.S.G. § 1B1.10(a)(2)(B) & cmt. n.1(A);
United States v. Paulk, 569 F.3d 1094, 1095-96 (9th Cir. 2009) (a reduction is not
authorized if an amendment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of a statutory mandatory
minimum). To the extent that Simtob contends that his 240-month sentence is a
miscarriage of justice, that claim is not cognizable in a section 3582(c)(2)
2 15-30366
proceeding. See Dillon v. United States, 560 U.S. 817, 826 (2010) (section
3582(c)(2) does not authorize a “plenary resentencing proceeding”).
AFFIRMED.
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