United States of America v. James Edward Bagby

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD BAGBY,
Defendant - Appellant.
No. 13-10219
D.C. No. 4:09-cr-00203-CW-34
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Submitted December 18, 2013 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
James Edward Bagby appeals pro se from the district court’s order denying
his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We review de novo
the issue of whether a district court has the authority to reduce a sentence under 18
FILED
FEB 18 2014
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 2 --

U.S.C. § 3582(c)(2). United States v. Pleasant, 704 F.3d 808, 810 (9th Cir. 2013).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Bagby contends that he is eligible for a reduction of his sentence under 18
U.S.C. § 3582(c)(2) because his sentence was based on U.S.S.G. § 2D1.1, which
subsequently was amended by the Sentencing Commission. However, in
accordance with the binding plea agreement, the court did not rely on U.S.S.G. §
2D1.1 to calculate the Guidelines range, but instead relied on the Career Offender
guideline, U.S.S.G. § 4B1.1. Therefore, Bagby’s sentence was not based on a
sentencing range that subsequently has been lowered by the Sentencing
Commission. See United States v. Wesson, 583 F.3d 728, 730-32 (9th Cir. 2009).
In addition, a reduction would not be consistent with the Sentencing Commission’s
policy statements because the Guidelines range calculated prior to any variance has
not been lowered as a result of an amendment. See U.S.S.G. § 1B1.10 cmt. n.1(A);
Pleasant, 704 F.3d at 811-12. Thus, Bagby did not satisfy the criteria required to
be eligible for a sentence reduction and the district court did not err when it denied
Bagby’s motion. See Wesson, 583 F.3d at 730-32.
AFFIRMED.
2

-- 2 of 2 --