USA v. Donald Hogan, No. 09-10320 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 05 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-10320 D.C. No. 3:94-cr-00044-ECR v. MEMORANDUM * DONALD LEROY HOGAN, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Edward C. Reed, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. 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 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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.1 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 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, 130 S. Ct. 2692 (2010). Hogan s request for a stay is denied. AFFIRMED. 1 Hogan was responsible for approximately 22 kilograms of crack cocaine. 2 09-10320
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