United States of America v. Herman William Rael

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERMAN WILLIAM RAEL,
Defendant-Appellant.
No. 16-50133
D.C. No. 3:05-cr-01972-H
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Herman William Rael appeals pro se from the district court’s order denying
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have
FILED
APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rael contends that he is entitled to a sentence reduction under Amendment
782 to the 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.
Wesson, 583 F.3d 728, 730 (9th Cir. 2009). Rael was sentenced as a career
offender under U.S.S.G. § 4B1.1. Thus, his sentence was not “based on” a
Guideline that was lowered by Amendment 782. See 18 U.S.C. § 3582(c)(2);
Wesson, 583 F.3d at 731. Further, insofar as Rael contends that the district court
erred when it determined that he was a career offender, this claim is not cognizable
in a section 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817, 831
(2010) (alleged sentencing errors are “outside the scope of the proceeding
authorized by § 3582(c)(2)”).
AFFIRMED.
16-50133 2

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