Opinion
No. 09-10320.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 5, 2010.
Peter Stuart Levitt, Esquire, Assistant U.S. Attorney, Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Richard F. Boulware, Esquire, Assistant Federal Public Defender, Federal Public Defender's Office, Las Vegas, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Edward C. Reed, District Judge, Presiding. D.C. No. 3:94-cr-00044-ECR.
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Donald Leroy Hogan appeals from the district court's order denying his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hogan contends that the district court erred by failing to reduce his sentence pursuant to Amendment 706 to the United States Sentencing Guidelines, which lowered the sentencing range for offenses involving crack cocaine. However, Amendment 706 did not lower the base offense level for crack offenses that equal or exceed 4.5 kilograms. See U.S.S.G. § 2D1.1(c)(1) (2008). Thus, Hogan's sentence is not based on a sentencing range that has subsequently been lowered by the Sentencing Commission, as required by Section 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). Hogan's argument that Leniear is distinguishable because it involved the "grouping" provision of the Guidelines is without merit. See id.
Hogan was responsible for approximately 22 kilograms of crack cocaine.
Hogan's argument that application of Leniear improperly delegates authority from Congress to the Sentencing Commission to define the subject-matter jurisdiction of the federal courts is also without merit. See 18 U.S.C. § 3582(c)(2) (conferring jurisdiction upon the district court to modify a term of imprisonment for a defendant whose sentence was based on a range that has subsequently been lowered by the Sentencing Commission); see also Dillon v. United States, ___U.S.___, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010).
Hogan's request for a stay is denied.
AFFIRMED.