United States of America v. Jose Luis Villasenor, a.k.a. Booger Eyes, a.k.a. Green Eyes

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LUIS VILLASENOR, a.k.a. Booger
Eyes, a.k.a. Green Eyes,
Defendant-Appellant.
No. 16-50296
D.C. No. 2:11-cr-00050-GAF-TJH
Central District of California,
Los Angeles
ORDER
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Villasenor’s petition for panel rehearing (Docket Entry No. 22) is granted.
The memorandum disposition filed on May 17, 2018, is withdrawn. A
replacement memorandum disposition is being filed concurrently with this order.
Villasenor’s petition for rehearing en banc is denied as moot.
No further petitions for rehearing will be entertained in this case.
FILED
OCT 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LUIS VILLASENOR, a.k.a. Booger
Eyes, a.k.a. Green Eyes,
Defendant-Appellant.
No. 16-50296
D.C. No. 2:11-cr-00050-GAF-TJH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Jose Luis Villasenor 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 vacate and remand.
Villasenor contends that he is eligible for 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
OCT 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-50296
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). Because Villasenor
was sentenced after the district court accepted the parties’ Federal Rule of Criminal
Procedure 11(c)(1)(C) plea agreement, he is not eligible for relief under section
3582(c)(2) unless “the district court’s decision to accept the plea and impose the
recommended sentence was based on the Guidelines.” United States v. Davis, 825
F.3d 1014, 1027 (9th Cir. 2016) (en banc) (quotations omitted).
The Supreme Court recently clarified that “a sentence imposed pursuant to a
Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that
range was part of the framework the district court relied on in imposing the
sentence or accepting the agreement.” Hughes v. United States, 138 S. Ct. 1765,
1775 (2018). The district court in this case did not have the benefit of Hughes
when it denied Villasenor’s motion; therefore, we vacate its order denying relief
and remand. On remand, the district court shall determine whether Villasenor is
eligible for a sentence reduction under Hughes and, if so, whether he should
receive a reduction in light of the 18 U.S.C. 3553(a) sentencing factors. See Dillon
v. United States, 560 U.S. 817, 826 (2010).
VACATED and REMANDED.

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