United States of America v. Raymond Mendez

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NOT FOR PUBLICATION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.
RAYMOND MENDEZ,
Defendant - Appellant.
No. 09-50189
D.C. No. 2:95-cr-00345-RSWL
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted November 16, 2010**
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Raymond Mendez appeals from the district court’s order denying his motion
for a reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
FILED
NOV 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-50189 2
Mendez first contends that the district court erred in concluding that Mendez
is ineligible for a sentence reduction under section 3582(c)(2). This contention is
foreclosed by United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009) (holding
that a defendant is not eligible for a sentence reduction under section 3582(c)(2)
when the application of that amendment does not result in a lower sentencing
range). Here, the district court appropriately found at sentencing that Mendez was
responsible for the distribution of 139 kilograms of crack cocaine. This finding of
fact maintained Mendez’s base offense level at 38, which did not lower his
sentencing range. See Leniear, 574 F.3d at 673-74.
Mendez also contends that the district court procedurally erred in imposing
his sentence by failing to address his mitigating argument and to adequately
explain the reasons for declining to impose a lower sentence. He further contends
that his guideline sentence is substantively unreasonable in light of his limited
involvement in the conspiracy. Mendez’s arguments are foreclosed by Dillon v.
United States, 130 S.Ct. 2683, 2690-94 (2010) (holding that Booker’s holdings do
not apply to section 3582(c)(2) proceedings and therefore do not require treating
section 1B1.10(b) as advisory).
AFFIRMED.

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