United States of America v. Lionel Irving, a.k.a., Mo

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NOT FOR PUBLICATION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.
LIONEL IRVING, a.k.a., Mo,
Defendant - Appellant.
No. 12-30149
D.C. No. 3:04-cr-05350-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Lionel Irving 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.
FILED
JAN 16 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-30149 2
Irving contends that he is entitled to a sentence reduction based on the
retroactive amendments to the Sentencing Guidelines that lowered the penalties for
crack cocaine offenses. We review de novo whether the district court had
jurisdiction to modify a defendant’s sentence under 18 U.S.C. § 3582(c)(2). See
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Irving is not eligible
for a sentence reduction because his sentence was based on the parties’ stipulation
in a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C),
and not “on a sentencing range that has subsequently been lowered by the
Sentencing Commission,” as required by section 3582(c)(2). See Freeman v.
United States, 131 S. Ct. 2685, 2695-96 (2011) (Sotomayor, J., concurring). The
plea agreement does not call for Irving to be sentenced within a particular
Guidelines sentencing range, nor is any such Guidelines range expressly used in
the agreement or evident from the agreement itself. See id. at 2697-98. Therefore,
the district court lacked jurisdiction to modify Irving’s sentence under section
3582(c)(2). See United States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012).
AFFIRMED.

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