United States of America v. Alvaro Zepeda-Toscano

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALVARO ZEPEDA-TOSCANO,
Defendant-Appellant.
No. 15-10572
D.C. No. 4:08-cr-01370-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Alvaro Zepeda-Toscano appeals pro se from the district court’s orders
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.
Zepeda-Toscano contends that he is entitled to a sentence reduction under
* 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).
FILED
DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-10572
Amendment 782 to the Sentencing Guidelines. 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). Assuming without
deciding that Zepeda-Toscano’s Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement does not preclude him from a sentence reduction under United
States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), he is nonetheless
ineligible for a sentence reduction under Amendment 782 because his sentence is
already below the minimum of the amended guideline range. See U.S.S.G.
§ 1B1.10(b)(2)(A) (“[T]he court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that
is less than the minimum of the amended guideline range.”). Accordingly, the
district court did not err by denying Zepeda-Toscano’s motion.
We reject Zepeda-Toscano’s claim that he received ineffective assistance of
counsel because the Federal Public Defender did not represent him in these
proceedings.
AFFIRMED.

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