United States of America v. Ricardo Cruzagosto

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NOT FOR PUBLICATION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.
RICARDO CRUZAGOSTO,
Defendant - Appellant.
No. 12-30152
D.C. No. 3:02-cr-00100-HRH
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, District Judge, Presiding
Submitted June 18, 2013**
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Ricardo Cruzagosto appeals from the district court’s order denying his
motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cruzagosto contends that he is entitled to a sentence reduction under
Amendments 748 and 750 to the Sentencing Guidelines. We review de novo.
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). The district court
FILED
JUN 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-30152 2
correctly determined that it was without authority to reduce Cruzagosto’s 168-
month sentence, as that sentence was at the bottom of the amended advisory
Sentencing Guidelines range. See 18 U.S.C. § 3582(c)(2) (permitting reduction of
sentence only where “such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission”); U.S.S.G. § 1B1.10(b)(2)(A)
(“the 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”).
Cruzagosto nonetheless argues that the district court should have treated his
four-level variance as a “guideline application decision[]” entitled to consideration
under U.S.S.G. § 1B1.10(b)(1). The language of and commentary to section
1B1.10(b)(2)(A) squarely foreclose his position. See U.S.S.G. § 1B1.10(b)(2)(A)
& cmt. n.3 (subsection (b)(2)(A) applies even where the district court imposed a
downward variance at sentencing).
AFFIRMED.

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