United States v. Aleksandr Malimon

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                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 16 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-30251

              Plaintiff-Appellee,                D.C. No. 3:10-cr-00396-SI-3

 v.
                                                 MEMORANDUM*
ALEKSANDR MALIMON,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                     Argued and Submitted November 8, 2017
                                Portland, Oregon

Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.

      Aleksandr Malimon appeals the district court’s denial of his 18 U.S.C. §

3582(c)(2) motion. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
      At oral argument, the government conceded that the district court’s

“anticipatory reduction,” granted at Ordonez’s original sentencing in anticipation

of a Guidelines-lowering amendment that had yet to take effect, was not

encompassed in the Guidelines calculation under U.S.S.G. § 1B1.1(a) but was

instead either a variance or departure. It further conceded that under U.S.S.G. §

1B1.10, the “applicable guidelines range” calculation includes only the U.S.S.G. §

1B1.1(a) factors and expressly excludes variances and departures. See U.S.S.G. §

1B1.10 cmt. 1(A). For this reason, Malimon has not been granted a reduction under

18 U.S.C. § 3582(c)(2) and continues to be eligible for a reduction. Malimon

preserved the above argument by raising it in his written motion to modify

sentence. The error was not harmless. See U.S.S.G. § 1B1.10 cmt. 1(B)(iii). We

therefore reverse and remand to the district court to determine whether and to what

extent a reduction in sentence is warranted. On remand, the district court may take

into account, in determining the sentence to be imposed, Malimon’s post-

sentencing conduct. See id.

      REVERSED AND REMANDED.




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