Opinion
No. 12-30006 D.C. No. 3:07-cr-05051-RBL-1
02-07-2013
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS GONZALEZ-CASTILLO, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 4, 2013
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Carlos Gonzalez-Castillo appeals the district court's order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.
Section 3582(c)(2) allows a modification of a term of imprisonment when two requirements are satisfied: (1) the sentence is based on a sentencing range that subsequently has been lowered by the Sentencing Commission; and (2) such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. See United States v. Waters, 648 F.3d 1114, 1116 (9th Cir. 2011). Even assuming Gonzalez-Castillo could satisfy the first requirement, he cannot satisfy the second.
The applicable policy statement provides that a reduction in a defendant's term of imprisonment is not authorized if an amendment to the Sentencing Guidelines "does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2). The term "applicable guideline range" refers to the defendant's guideline range before application of any departure or variance. See United States v. Pleasant, — F.3d. —, 2013 WL 11892, at *3 (9th Cir. Jan. 2, 2013). Gonzalez-Castillo's applicable guideline range before any variance was his career offender range under U.S.S.G. § 4B1.1. The Sentencing Commission's amendments to the Guidelines have not lowered his career offender range. Gonzalez-Castillo is therefore ineligible for a reduction of sentence.
Gonzalez-Castillo's ex post facto, Administrative Procedure Act and other statutory challenges to § 1B1.10 are waived because they are raised for the first time in his reply brief. See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012).
AFFIRMED.