United States of America v. Vincent Gamboa

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NOT FOR PUBLICATION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.
VINCENT GAMBOA,
Defendant - Appellant.
No. 12-30064
D.C. No. 3:93-cr-02090-RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Vincent Gamboa appeals pro se from the district court’s order denying his
18 U.S.C. § 3582(c)(2) motion for reduction of sentence, and from the district
court’s denial of his motion for reconsideration of that order. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
FILED
OCT 16 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-30064 2
Gamboa contends that he is eligible for a sentence reduction under
Amendment 750 to the Guidelines, which changed the drug quantity table in
U.S.S.G. § 2D1.1 for offenses involving crack cocaine. Gamboa was sentenced as
a career offender under U.S.S.G. § 4B1.1. He nevertheless maintains that, because
Amendment 750 is ambiguous, the rule of lenity permitted the district court to
reduce his sentence. Even assuming the rule of lenity can be applied to a
Guidelines amendment, this argument fails. Gamboa has not shown that there is
any ambiguity in Amendment 750 or the Fair Sentencing Act, under which the
amendment was promulgated, with respect to their effect on the career offender
provision. See United States v. Bland, 961 F.2d. 123, 128 (9th Cir. 1992) (“The
rule of lenity does not permit us to create an ambiguity where none exists.”).
Because Gamboa’s sentence was not “based on” a Guidelines range that has been
lowered, the district court did not err by denying his motion for reduction of
sentence. See 18 U.S.C. § 3582(c)(2); United States v. Wesson, 583 F.3d 728,
731-32 (9th Cir. 2009).
AFFIRMED.

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