United States of America v. Gary L. Mason

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NOT FOR PUBLICATION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.
GARY L. MASON,
Defendant - Appellant.
No. 12-30244
D.C. No. 2:08-cr-00141-FVS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted June 18, 2013**
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Gary L. Mason 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.
The government contends that this appeal is barred by the appeal waiver in
FILED
JUN 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-30244 2
Mason’s plea agreement. We disagree. The appeal waiver does not encompass a
decision regarding a section 3582(c)(2) motion. See United States v. Lightfoot, 626
F.3d 1092, 1094-95 (9th Cir. 2010).
Mason contends that he is entitled to a sentence reduction based on
Amendment 750 to the Sentencing Guidelines. We review de novo whether the
district court had authority to modify a defendant’s sentence under section
3582(c)(2). See United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012). Mason
is not eligible for a sentence reduction because his sentence was based on the
sentencing range stipulated in a binding plea agreement under Federal Rule of
Criminal Procedure 11(c)(1)(C), and not on a sentencing range that has been
subsequently 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 Mason 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. Accordingly, the district court lacked authority to
modify Mason’s sentence under section 3582(c)(2). See Austin, 676 F.3d at 930.
Mason argues that Austin was wrongly decided. We are bound by Austin.
See United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009).
AFFIRMED.

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