Opinion
No. 16-56805
05-17-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILMER ALEXIS ERAZO HERNANDEZ, a.k.a. Lacra, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. Nos. 3:16-cv-02081-DMS 3:12-cr-04965-DMS MEMORANDUM Appeal from the United States District Court for the Southern District of California
Dana M. Sabraw, District Judge, Presiding Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Wilmer Alexis Erazo Hernandez appeals pro se 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.
Hernandez contends that he is eligible for a sentence reduction under Amendment 794 to the Sentencing Guidelines. We review de novo whether a district court had authority to modify a sentence under section 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). A court may not grant a sentence reduction under section 3582 unless such a reduction would be consistent with the applicable policy statements issued by the Sentencing Commission, as reflected in U.S.S.G. § 1B1.10. See 18 U.S.C. § 3582(c)(2); United States v. Ornelas, 825 F.3d 548, 549-50 (9th Cir. 2016). Section 1B1.10 does not include Amendment 794 in its list of covered amendments. See U.S.S.G. § 1B1.10(d). As a result, although we have held that Amendment 794 is retroactive, see United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016), the district court properly determined that Amendment 794 cannot serve as the basis for a sentence reduction under section 3582(c)(2). See U.S.S.G. § 1B1.10 cmt. n.1(A) ("Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (d)."); Ornelas, 825 F.3d at 550 (court has discretion to lower a sentence if the guideline range has been lowered as a result of an amendment listed in section 1B1.10(d)).
AFFIRMED.