Opinion
No. 19-10009
03-10-2020
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ENRIQUE LOPEZ QUINTERO, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 5:11-cr-00711-EJD-1 MEMORANDUM Appeal from the United States District Court for the Northern District of California
Edward J. Davila, District Judge, Presiding Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Enrique Lopez Quintero 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. We review de novo whether the district court had authority to reduce Quintero's sentence under section 3582, see United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009), and we affirm.
Quintero contends that he is eligible for a sentence reduction because Amendment 782 to the Sentencing Guidelines, which amended the drug quantity tables in U.S.S.G § 2D1.1, lowered the Guidelines range contained in his binding plea agreement. However, even assuming arguendo that Quintero's sentence was "based on" the Guidelines range calculated in the plea agreement, he would still not be eligible for a reduction because Amendment 782 did not lower the Guidelines range "applicable to" him. See U.S.S.G. § 1B1.10(a)(2) (sentence reduction is not authorized under section 3582(c)(2) unless a listed amendment lowers the Guidelines range "applicable to" the defendant). The "applicable" Guidelines range is the correctly calculated, pre-variance range. See U.S.S.G. § 1B1.10(a)(1) & cmt. n.1(A); United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir. 2013), overruled on other grounds by United States v. Davis, 825 F.3d 1014 (9th Cir. 2016). Here, there is no dispute that Quintero was properly determined to be a career offender under the Guidelines. Thus, as the district court correctly concluded, the applicable range was the career offender range. Because that range was not lowered by Amendment 782, Quintero is not eligible for a sentence reduction. See 18 U.S.C. § 3582(c)(2); Pleasant, 704 F.3d at 812.
AFFIRMED.