and Submitted April 12, 2018 [*] San Francisco, California
from the United States District Court for the Eastern
District of California William B. Shubb, Senior District
Judge, Presiding D.C. Nos. 2:95-cr-00504-WBS-AC-1
P. Balazs (argued), Sacramento, California, for
Roth (argued) and Jason Hitt, Assistant United States
Attorneys; Camil A. Skipper, Appellate Chief; Phillip A.
Talbert, United States Attorney; United States Attorney's
Office, Sacramento, California; for Plaintiff-Appellee.
Before: William A. Fletcher and Richard C. Tallman, Circuit
Judges, and Brian M. Morris, [**] District Judge.
U.S.C. § 3582(c)(2) / 28 U.S.C. § 2255
panel affirmed the district court's denial of Jose Luis
Buenrostro's motion for a sentence reduction under 18
U.S.C. § 3582(c)(2), and the district court's denial
of his motion to vacate his sentence under 28 U.S.C. §
2255, following President Obama's commutation of his
sentence from life in prison without release to 360 months in
panel held that Buenrostro is ineligible for a sentence
modification under § 3582(c)(2) because he was
originally sentenced based on a statutory mandatory minimum,
not based on a sentencing range. Explaining that a
presidential commutation does not overturn the sentence
imposed by the sentencing court, the panel wrote that
President Obama's commutation was not based on a
recalculation of a sentencing range.
panel held that President Obama's commutation of
Buenrostro's sentence did not create a new judgment, and
that Buenrostro therefore remains subject to the restrictions
on second-or-successive motions under § 2255.
FLETCHER, CIRCUIT JUDGE.
Jose Luis Buenrostro brings two appeals. First, in case
number 16-10499, he appeals the district court's denial
of his motion for a sentence modification under 18 U.S.C.
§ 3582(c)(2). Second, in case number 17-15453, he
appeals the district court's denial of his motion to
vacate his sentence under 28 U.S.C. § 2255. Both appeals
turn on the effect of President Obama's commutation of
Buenrostro's sentence in 2016 from life in prison without
release to 360 months in prison. We have jurisdiction in the
first appeal under 28 U.S.C. § 1291 and in the second
appeal under 28 U.S.C. § 2253. We affirm in both.
26, 1996, Buenrostro was convicted of conspiracy to
manufacture more than thirty-one kilograms of methamphetamine
in violation of 21 U.S.C. §§ 846, 841(a)(1).