United States of America v. John Thonars McGee

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NOT FOR PUBLICATION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.
JOHN THONARS MCGEE,
Defendant - Appellant.
No. 12-50119
D.C. No. 2:07-cr-01208-AHM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted July 24, 2013**
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
John Thonars McGee appeals from the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction under
28 U.S.C. § 1291. We review de novo whether a district court has authority to
FILED
AUG 01 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-50119 2
modify a sentence under section 3582(c)(2). See United States v. Pleasant, 704
F.3d 808, 810 (9th Cir. 2013). We affirm.
McGee contends that he is eligible for a sentence reduction under
Amendment 750 to the Guidelines, which lowered the offense levels for crimes
involving cocaine base under U.S.S.G. § 2D1.1. McGee acknowledges that the
district court calculated his advisory range under U.S.S.G. § 4B1.1, the career
offender guideline, and that career offenders are not eligible for a sentence
reduction under section 3582(c)(2). See United States v. Wesson, 583 F.3d 728,
731-32 (9th Cir. 2009). He contends, however, that he is entitled to a reduction
because the court relied in part on U.S.S.G. § 2D1.1 in varying downward. The
record reflects that the court did not rely on U.S.S.G. § 2D1.1 in varying
downward. Even if it had, a reduction in McGee’s sentence would not be
consistent with U.S.S.G. § 1B1.10(a)(1), which establishes that the applicable
Guidelines range is the pre-departure and pre-variance Guidelines range. See
U.S.S.G. § 1B1.10 cmt. n.1(A) (2011); Pleasant, 704 F.3d at 812. Accordingly,
the district court lacked authority to reduce McGee’s sentence. See id.
AFFIRMED.

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