United States of America v. Donald Leroy Hogan

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NOT FOR PUBLICATION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.
DONALD LEROY HOGAN,
Defendant - Appellant.
No. 09-10320
D.C. No. 3:94-cr-00044-ECR
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Donald Leroy Hogan appeals from the district court’s order denying his
18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Hogan contends that the district court erred by failing to reduce his sentence
FILED
OCT 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Hogan was responsible for approximately 22 kilograms of crack cocaine.1
09-10320 2
pursuant to Amendment 706 to the United States Sentencing Guidelines, which
lowered the sentencing range for offenses involving crack cocaine. However,
Amendment 706 did not lower the base offense level for crack offenses that equal
or exceed 4.5 kilograms. See U.S.S.G. § 2D1.1(c)(1) (2008). Thus, Hogan’s1
sentence is not based on a sentencing range that has subsequently been lowered by
the Sentencing Commission, as required by Section 3582(c)(2). See United States
v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). Hogan’s argument that Leniear is
distinguishable because it involved the “grouping” provision of the Guidelines is
without merit. See id.
Hogan’s argument that application of Leniear improperly delegates authority
from Congress to the Sentencing Commission to define the subject-matter
jurisdiction of the federal courts is also without merit. See 18 U.S.C. § 3582(c)(2)
(conferring jurisdiction upon the district court to modify a term of imprisonment
for a defendant whose sentence was based on a range that has subsequently been
lowered by the Sentencing Commission); see also Dillon v. United States, 130 S.
Ct. 2692 (2010).
Hogan’s request for a stay is denied.
AFFIRMED.

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