USA V. ALEJANDRO TINOCO, No. 18-50103 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION DEC 3 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 18-50103 D.C. No. 2:12-cr-01093-DSF v. MEMORANDUM* ALEJANDRO TINOCO, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Submitted November 27, 2018** Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges. Alejandro Tinoco 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. Tinoco contends that the district court erred by denying his motion for a * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). sentence reduction under Amendments 782 and 794 to the Sentencing Guidelines. We review de novo whether a district court had authority to modify a sentence under section 3582(c)(2). United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Because Tinoco’s 240-month sentence is below the amended Guidelines range of 292-365 months, the district court properly concluded that he was ineligible for a reduction under Amendment 782. See U.S.S.G. § 1B1.10(b)(2)(A) (district court may not reduce a sentence under section 3582(c)(2) “to a term that is less than the minimum of the amended guideline range”). The district court also correctly denied Tinoco’s motion under Amendment 794 because Amendment 794 is not a covered amendment under U.S.S.G. § 1B1.10(d). 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).”); United States v. Ornelas, 825 F.3d 548, 550 & n.3 (9th Cir. 2016). In light of Tinoco’s ineligibility for a sentence reduction as a result of any qualifying amendment, the district court could not consider his post-sentencing rehabilitation or the 18 U.S.C. § 3553(a) sentencing factors as a basis for granting a reduction. See Dillon v. United States, 560 U.S. 817, 826-27 (2010). AFFIRMED. 2 18-50103

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