United States of America v. Kevin Doucette

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN DOUCETTE,
Defendant-Appellant.
No. 12-50370
D.C. No. 09-217-GHK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted October 9, 2013
Pasadena, California
Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.
Kevin Doucette appeals the district court’s order denying his motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant
to 28 U.S.C. § 1291. We review de novo whether a district court may modify an
FILED
NOV 12 2013
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.
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otherwise final sentence under § 3582. United States v. Wesson, 583 F.3d 728, 730
(9th Cir. 2009). We affirm.
Section 3582(c)(2) allows modification of a term of imprisonment when: (1)
the sentence is based on a sentencing range that has subsequently been lowered by
the Sentencing Commission; and (2) such reduction is consistent with applicable
policy statements issued by the Sentencing Commission. Id. Doucette argues that
he is eligible for a sentence reduction under Amendment 750, which made
permanent earlier modifications to the drug quantity table in United States
Sentencing Guideline (“U.S.S.G.”) § 2D1.1 for offenses involving crack cocaine.
But Doucette was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1.
Therefore, his sentence was not based on a Guideline range that has been lowered,
and was ineligible for modification under § 3582. See 18 U.S.C. § 3582(c)(2);
Wesson, 583 F.3d at 731–32.
Because Doucette cannot satisfy the first requirement for a sentence
modification under § 3582(c)(2), we need not consider Doucette’s ex post facto
challenge to U.S.S.G. § 1B1.10—the Guideline that sets out the policy statements
relevant to the second requirement for a sentence modification under § 3582(c)(2).
AFFIRMED.
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