United States of America v. JOE HERNANDEZ, AKA Shakey Joe

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case 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NOT FOR PUBLICATION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.
JOE HERNANDEZ, AKA Shakey Joe,
Defendant - Appellant.
No. 09-50084
D.C. No. 2:95-cr-00345-RSWL-20
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted November 16, 2009**
Before: THOMPSON, TROTT and TALLMAN, Circuit Judges.
A defendant is not eligible for a sentence reduction under 18 U.S.C. §
3582(c)(2) when the application of that amendment does not result in a sentencing
range “lowered by the Sentencing Commission.” United States v. Leniear, 574
FILED
DEC 10 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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F.3d 668, 673 (9th Cir. 2009). Here, the district court appropriately found as a fact
that the defendant was responsible for the distribution of more than 4.5 kilograms
of crack cocaine. This finding of fact maintained the defendant’s base offense
level at 38, which did not lower his sentencing range. Moreover, the district court
properly exercised its discretion in determining that in consideration of the serious
nature of his convictions -- including multiple RICO racketeering acts of
conspiracy to commit multiple murders -- and the factors in 18 U.S.C. § 3553(a), a
reduction of his sentence was not appropriate.
AFFIRMED.

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