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United States v. Waters

United States Court of Appeals, Ninth Circuit

November 14, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
GEARY WAYNE WATERS, JR., Defendant-Appellant

Submitted, October 10, 2014, Pasadena, California [*]

Appeal from the United States District Court for the Central District of California. D.C. No. 5:00-cr-00016-RT-1. Robert J. Timlin, Senior District Judge, Presiding.

SUMMARY[**]

Criminal Law

The panel affirmed the district court's order dismissing a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) based on Sentencing Guidelines Amendment 759, which made permanent and retroactive earlier modifications to the drug-quantity table for offenses involving crack cocaine.

The panel rejected as foreclosed by this court's decision in the defendant's previous appeal the defendant's argument that he is eligible for a reduction under the Amendment. Because the Amendment had no effect on his applicable guideline range due to his career offender status, the defendant is ineligible for a reduction.

The panel rejected the defendant's ex post facto challenge to a 2011 amendment to Application Note 6 of U.S.S.G. § 1B1.10, which directs district courts to use the version of the policy statement in effect on the date on which the court reduces the defendant's term of imprisonment, restricting a district court's discretion to lower a defendant's sentence below the amended Guidelines. The panel wrote that because application of the amendments would not increase the punishment for the crime over what was imposed when the defendant was sentenced, there is no ex post facto problem.

Carlton F. Gunn, Pasadena, California, for Defendant-Appellant.

André Birotte, Jr., United States Attorney; Robert E. Dugdale, Assistant United States Attorney; Todd T. Tristan, Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellee.

Before: Andrew J. Kleinfeld, Susan P. Graber, and John B. Owens, Circuit Judges.

OPINION

Page 680

PER CURIAM

Geary W. Waters appeals the district court's order dismissing his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo whether a district court has jurisdiction to modify an otherwise final sentence. United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009). We affirm.

Section 3582(c)(2) allows modification of a term of imprisonment when: (1) the sentence is based on a sentencing range that has subsequently been lowered by the Sentencing Commission; and (2) such reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. Neither of Waters's ...


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