United States of America v. Carlos Gonzalez-Castillo

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NOT FOR PUBLICATION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.
CARLOS GONZALEZ-CASTILLO,
Defendant - Appellant.
No. 12-30006
D.C. No. 3:07-cr-05051-RBL-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 4, 2013**
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Carlos Gonzalez-Castillo appeals the district court’s order denying his
motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.
FILED
FEB 07 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Section 3582(c)(2) allows a modification of a term of imprisonment when
two requirements are satisfied: (1) the sentence is based on a sentencing range that
subsequently has been lowered by the Sentencing Commission; and (2) such a
reduction is consistent with applicable policy statements issued by the Sentencing
Commission. See United States v. Waters, 648 F.3d 1114, 1116 (9th Cir. 2011).
Even assuming Gonzalez-Castillo could satisfy the first requirement, he cannot
satisfy the second.
The applicable policy statement provides that a reduction in a defendant’s
term of imprisonment is not authorized if an amendment to the Sentencing
Guidelines “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2). The term “applicable guideline range”
refers to the defendant’s guideline range before application of any departure or
variance. See United States v. Pleasant, — F.3d. —, 2013 WL 11892, at *3 (9th
Cir. Jan. 2, 2013). Gonzalez-Castillo’s applicable guideline range before any
variance was his career offender range under U.S.S.G. § 4B1.1. The Sentencing
Commission’s amendments to the Guidelines have not lowered his career offender
range. Gonzalez-Castillo is therefore ineligible for a reduction of sentence.
Gonzalez-Castillo’s ex post facto, Administrative Procedure Act and other
statutory challenges to § 1B1.10 are waived because they are raised for the first

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time in his reply brief. See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir.
2012).
AFFIRMED.

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