NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30349
Plaintiff-Appellee, D.C. No. 1:09-cr-00130-BMM
v.
MEMORANDUM*
DRURY HILL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Drury Hill appeals from the district court’s order denying 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.
Hill contends that the district court erred by using the undisputed guideline
*
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).
range calculated at sentencing, rather than the lower range calculated in his plea
agreement, to determine his applicable guideline range. Reviewing de novo, see
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009), we conclude that the
district court properly denied Hill relief. For purposes of a motion for a sentence
reduction, the applicable guideline range is the pre-departure, pre-variance range
calculated by the court at sentencing. See U.S.S.G. § 1B1.10 cmt. n.l(A); United
States v. Ornelas, 825 F.3d 548, 554-55 (9th Cir. 2016) (applicable guideline range
does not include criminal history category departure). This is true even when a
binding plea agreement calculates a lower range to cover the stipulated sentence.
See United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir. 2013) (applicable
guideline range was career offender range notwithstanding lower range calculated
in the plea agreement), overruled on other grounds by United States v. Davis, 825
F.3d 1014 (9th Cir. 2016) (en banc). Here, the record reflects that the court
correctly calculated an undisputed guideline range of 262 to 327 months, but
agreed to vary downward to impose the stipulated sentence, which was in the
middle of the lower range calculated in the plea agreement. Under these
circumstances, the court correctly determined that the applicable guideline range
was 262 to 327 months, and the amended guideline range was 210 to 262 months.
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Because Hill received a 210-month sentence for his drug offense, he is ineligible
for a reduction. See U.S.S.G. § 1B1.10(b)(2)(A) (a sentence may not be reduced
below the minimum of the amended guideline range).
Hill’s contention that he is entitled to withdraw his guilty plea is outside the
scope of this proceeding. See Dillon v. United States, 560 U.S. 817, 825-26
(2010).
AFFIRMED.
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