USA V. JESUS LOPEZ, No. 15-10406 (9th Cir. 2016)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 01 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, No. 15-10406 D.C. No. 1:09-cr-00299-LJO v. MEMORANDUM* JESUS LOPEZ, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Submitted October 25, 2016** Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges. The government appeals from the district court’s order granting Jesus Lopez’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. * 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). The government argues that the district court lacked authority to reduce Lopez’s sentence to 151 months. In light of our recent decision in United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016), we agree. In determining the “applicable guidelines range” under U.S.S.G. § 1B1.10, the district court improperly considered the downward departure that Lopez received at his original sentencing hearing under section 4A1.3(b). See id. at 554-55. The district court should have used the amended base offense level of 33 paired with the pre-departure criminal history category of III, which results in an amended guidelines range of 168 to 210 months. Although Lopez disagrees with the holding in Ornelas, he concedes that it precludes a reduction of his sentence below 168 months. See U.S.S.G. § 1B1.10(b)(2)(A); Ornelas, 825 F.3d at 555. This court has already rejected Lopez’s argument that this application of U.S.S.G. § 1B1.10(b) violates the Ex Post Facto Clause of the United States Constitution. See United States v. Waters, 771 F.3d 679, 680-81 (9th Cir. 2014); see also Ornelas, 825 F.3d at 555 n.9 (noting rejection). Accordingly, we vacate and remand for resentencing consistent with our decision in Ornelas. VACATED and REMANDED for resentencing. 2 15-10406

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