USA V. FELIX TRONCOSO, No. 12-10237 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 31 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 12-10237 D.C. No. 3:09-cr-00056-WHA v. MEMORANDUM * FELIX TRONCOSO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Submitted December 19, 2012 ** Before: GOODWIN, WALLACE, and FISHER, Circuit Judges. Felix Troncoso appeals 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 a district court has jurisdiction to * 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). modify a sentence under section 3582. See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). We affirm. Troncoso contends that he is entitled to a sentence reduction under Amendment 750, which amended the drug quantity table in U.S.S.G. § 2D1.1 for offenses involving crack cocaine. Troncoso is not eligible for a sentence reduction because his sentence was based on the parties stipulation in a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), and not on a sentencing range that has subsequently been lowered by the Sentencing Commission, as required by section 3582(c)(2). See Freeman v. United States, 131 S. Ct. 2685, 2695-96 (2011) (Sotomayor, J., concurring and controlling). Although a Guidelines sentencing range is specified in Troncoso s plea agreement, the stipulated sentence is not within that range. Troncoso s contention that the parties nevertheless based the stipulated sentence on a Guidelines range is not supported by the plea agreement itself, which is the only place this court may look to determine the basis for the sentence imposed. See id. at 2697-98. We therefore conclude that the sentence is based on the parties binding agreement, and the district court lacked jurisdiction to modify Troncoso s sentence under section 3582(c)(2). See United States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012). AFFIRMED. 2 12-10237