USA V. DANNY PEREDA, No. 19-10041 (9th Cir. 2019)

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NOT FOR PUBLICATION FILED DEC 17 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 19-10041 D.C. No. 2:11-cr-00119-WBS-5 v. MEMORANDUM* DANNY PEREDA, AKA T-Mighty, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding Submitted December 11, 2019** Before: WALLACE, CANBY, and TASHIMA, Circuit Judges. Danny Pereda 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. Pereda argues that he is entitled to a sentence reduction under Amendment 782. We review de novo whether a district court has authority to modify 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 under section 3582(c)(2). See United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009). As the district court concluded, Pereda was sentenced as a career offender under U.S.S.G. § 4B1.1. Contrary to Pereda’s assertion, the fact that the parties stipulated to, and the district court accepted, a sentence below the careeroffender guideline range does not make him eligible for a reduction. For purposes of a sentence reduction motion, the “applicable” guideline range is the pre-variance range. See U.S.S.G. § 1B1.10 cmt. n.1(A); United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir. 2013), overruled on other grounds by United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc). Because the pre-variance range here was the career-offender range, which was not lowered by Amendment 782, Pereda is ineligible for a sentence reduction. See Pleasant, 704 F.3d at 812; Wesson, 583 F.3d at 731. Pereda’s remaining claims are outside the scope of this section 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817, 831 (2010). AFFIRMED. 2 19-10041

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