USA V. MICHAEL SHIRLEY, No. 13-10013 (9th Cir. 2014)

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FILED OCT 02 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-10013 D.C. No. 5:09-cr-00135-RMW v. MEMORANDUM* MICHAEL DAMAR SHIRLEY, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding Submitted September 23, 2014** Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges. Michael Damar Shirley 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 * 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). has authority to modify a sentence under section 3582, see United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009), and we affirm. Shirley contends that he is entitled to a sentence reduction under Amendment 750 to the Sentencing Guidelines. This contention fails. Notwithstanding the fact that Shirley was sentenced under a Rule 11(c)(1)(C) plea agreement that calculated the advisory Sentencing Guidelines range by reference to U.S.S.G. § 2D1.1, the applicable Guidelines range in his case was U.S.S.G. § 4B1.1, the Career Offender Guideline. See United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir.), cert. denied, 134 S. Ct. 824 (2013). Accordingly, the district court lacked authority to reduce Shirley s sentence. See id. at 812. In light of our decision, we need not reach the government s contention that Shirley waived his right to file a section 3582 motion in his plea agreement. Shirley s unopposed motion to file a late reply brief is granted, and the Clerk shall file the reply brief submitted on July 14, 2014. AFFIRMED. 2 13-10013

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