United States of America v. Fernando Claveria-Martinez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO CLAVERIA-MARTINEZ,
Defendant - Appellant.
No. 09-10057
D.C. No. 2:97-cr-00080-PMP
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Fernando Claveria-Martinez appeals from the district court’s order granting
his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Claveria-Martinez contends that the district court erred by failing to consider
FILED
OCT 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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all of the 18 U.S.C. § 3553(a) sentencing factors when ruling on his motion for
sentence reduction. To the extent that Claveria-Martinez contends that the district
court erred by failing to treat the amended Sentencing Guidelines range as
advisory, pursuant to United States v. Booker, 543 U.S. 220 (2005), this contention
is foreclosed by Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). To the
extent that Claveria-Martinez contends that the district court failed to consider the
section 3553(a) factors when determining whether the authorized reduction was
warranted, this contention is belied by the record.
Claveria-Martinez also contends that a reduction in his criminal history
category is appropriate because the district court improperly relied on his July
1995 arrest when departing upward at the original sentencing hearing. This
contention fails because this aspect of Claveria-Martinez’s sentence was “not
affected by the Commission’s amendment to [U.S.S.G.] § 2D1.1 [and therefore is]
outside the scope of the proceeding authorized by § 3582(c)(2).” Dillon, 130 S. Ct.
at 2693-94.
AFFIRMED.

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