United States of America v. Mayra Eunice Aragon- Rodriguez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAYRA EUNICE ARAGON-
RODRIGUEZ,
Defendant - Appellant.
No. 15-50287
D.C. No. 3:13-cr-03180-CAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted November 19, 2015**
Pasadena, California
Before: PREGERSON, TASHIMA, and CALLAHAN, Circuit Judges.
Mayra Aragon-Rodriguez (“Aragon-Rodriguez”) appeals the district court’s
denial of her motion to reduce her sentence. Aragon-Rodriguez pleaded guilty to
importation of cocaine in violation of 21 U.S.C. §§ 952 and 960, and the district
FILED
DEC 10 2015
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.
** 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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court sentenced her to 33 months’ imprisonment. On May 29, 2015,
Aragon-Rodriguez, through counsel, moved to reduce her sentence under 18
U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing
Commission Guidelines Manual (USSG). The district court denied
Aragon-Rodriguez’s motion because her original sentence of 33 months was
already less than the minimum term of the “amended guideline range” under
USSG § 1B1.10(b)(2)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291.
United States v. Dunn, 728 F.3d 1151, 1155–56 (9th Cir. 2013); see also United
States v. Tercero, 734 F.3d 979, 980 (9th Cir. 2013). We affirm.
“We review for abuse of discretion a district court’s ruling on a motion for
reduction of sentence pursuant to § 3582(c)(2).” Tercero, 734 F.3d at 981.
Underlying questions of law are reviewed de novo. See United States v. Davis,
739 F.3d 1222, 1223 (9th Cir. 2014).
In 2014, the United States Sentencing Commission promulgated
Amendment 782 to the Guidelines which reduced the base offense levels in the
drug quantity table. USSG supp. app. C, amend. 782 (2014). The reduced base
offense level in the drug quantity table in turn reduced the sentencing guideline
range that the district court uses as a starting point to determine the sentence. The
Commission made the reduction in Amendment 782 retroactive in Amendment
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788. USSG, supp. app. C, amend. 788 (2014). However, the Guidelines provide
that “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 . . . .” USSG § 1B1.10(b)(2)(A). The
text, structure, and commentary of the Guidelines as well as supporting case law
support the conclusion that the “amended guideline range” does not include
departures from the sentencing guidelines, except a departure for substantial
assistance to government authorities. See USSG §§ 1B1.1(a) & cmt. (n.1(E)),
1B1.10(b) & cmt. (n.3); Davis, 739 F.3d at 1224; Tercero, 734 F.3d at 981–82;
Notice of Final Action Regarding Amendment to Policy Statement 1B1.10, 76 Fed.
Reg. 41332, 41334 (July 13, 2011). Thus, the district court properly calculated
Aragon-Rodriguez’s amended guideline range as 46 to 57 months of imprisonment
in her re-sentencing proceeding, and excluded the 4-level fast-track downward
departure that the court granted in her original sentencing. Because
Aragon-Rodriguez’s original 33-month sentence is lower than 46 months, the
minimum term in the “amended guideline range,” the district court did not err in
denying her motion to reduce her sentence. See USSG § 1B1.10(b)(2)(A).
AFFIRMED.
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