USA V. LYLE JOHNS, No. 15-10562 (9th Cir. 2016)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 3 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 15-10562 D.C. No. 4:91-cr-00392-CKJ MEMORANDUM* LYLE GERALD JOHNS, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted September 27, 2016** Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges. Lyle Gerald Johns 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, and we affirm. Johns contends that his sentence violates Apprendi v. New Jersey, 530 U.S. * 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). 466 (2000), and that, prior to ruling on his motion for a sentence reduction under Amendment 782 to the Sentencing Guidelines, the district court should have corrected this error by recalculating the drug quantities attributable to him. We review de novo whether a district court had authority to modify a sentence under section 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). As the district court properly determined, Johns’s Apprendi claim cannot be raised in a 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817, 831 (2010) (alleged sentencing errors are “outside the scope of the proceeding authorized by § 3582(c)(2)”). Moreover, Johns is ineligible for a sentence reduction because Amendment 782 did not lower his applicable sentencing range. See 18 U.S.C. § 3582(c)(2); Leniear, 574 F.3d at 673-74. Johns’s motion for release pending appeal is denied as moot. AFFIRMED. 2 15-10562

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