United States of America v. Joshua Reed Lewis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA REED LEWIS,
Defendant-Appellant.
No. 16-30225
D.C. No. 9:11-cr-00049-DWM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Joshua Reed Lewis appeals from the district court’s order denying his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo whether a district court
had authority to modify a sentence under section 3582(c)(2), see United States v.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-30225
Leniear, 574 F.3d 668, 672 (9th Cir. 2009), and we affirm.
Lewis contends that he is entitled to a sentence reduction under Amendment
782 to the Sentencing Guidelines. The district court correctly concluded that
Lewis is ineligible for a sentence reduction because his sentence is already below
the minimum of the amended Guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A)
(“[T]he court shall not reduce the defendant’s term of imprisonment under 18
U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the
minimum of the amended guideline range.”). Contrary to Lewis’s contention, the
application of section 1B1.10(b)(2)(A) to his case does not violate the Ex Post
Facto Clause. See United States v. Waters, 771 F.3d 679, 680-81 (9th Cir. 2014);
see also United States v. Ornelas, 825 F.3d 548, 555 n.9 (9th Cir. 2016) (relying on
Waters to reject Ex Post Facto claim). Lewis’s remaining constitutional and
statutory challenges to section 1B1.10(b)(2) are foreclosed. See United States v.
Padilla-Diaz, 862 F.3d 856, 860-63 (9th Cir. 2017) (section 1B1.10(b)(2) does not
violate a defendant’s right to equal protection or due process, or impermissibly
conflict with 28 U.S.C. § 991(b)); United States v. Davis, 739 F.3d 1222, 1226 (9th
Cir. 2014) (section 1B1.10(b)(2) does not violate separation of powers).
AFFIRMED.

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