United States of America v. Fernando Quezada-Daza

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO QUEZADA-DAZA,
Defendant - Appellant.
No. 13-30114
D.C. No. 1:98-cr-00084-EJL
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS QUEZADA-DAZA,
Defendant - Appellant.
No. 13-30115
D.C. No. 1:98-cr-00084-EJL
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
FILED
APR 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
In these companion appeals, Fernando Quezada-Daza (“Fernando”) and
Jesus Quezada-Daza (“Jesus”) appeal pro se from the district court’s orders
denying their motions for a sentence reduction under 18 U.S.C. § 3582(c)(2). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Appellants contend that they are entitled to a sentence reduction under
Amendment 591 to the United States Sentencing Guidelines. We review de novo
whether a district court has authority to modify a sentence under section
3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009).
Amendment 591 did not alter the Guidelines section applicable to appellants’
offense of conviction or the calculation of their Guidelines range under U.S.S.G.
§ 2D1.1. See U.S.S.G. app. C, amend. 591 (Supp. 2003); see also United States v.
McEnry, 659 F.3d 893, 898-99 (9th Cir. 2011) (discussing changes made by
Amendment 591). Because Amendment 591 did not lower appellants’ advisory
Sentencing Guidelines range, the district court lacked authority to reduce their
sentences. See 18 U.S.C. § 3582(c)(2); Leniear, 574 F.3d at 674.
Fernando also contends that he is entitled to a sentence reduction because
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, we reject Jesus
Quezada-Daza’s request for oral argument.
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the jury verdict did not specify whether he was guilty of possessing marijuana,
methamphetamine, or both, and because the drug quantity was determined by the
judge, not the jury. This argument is not cognizable under section 3582(c)(2). See
Dillon v. United States, 560 U.S. 817, 825-26 (2010) (proceedings under §
3582(c)(2) are not plenary resentencings). Likewise, Jesus’s contention that Peugh
v. United States, 133 S. Ct. 2072 (2013), and Alleyne v. United States, 133 S. Ct.
2151 (2013), entitle him to a sentence reduction is not cognizable. See Dillon, 560
U.S. at 828.
Fernando’s motion to take judicial notice is denied.
AFFIRMED.
13-30114 & 13-30115 3

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