United States v. Jose Villasenor ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50296
Plaintiff-Appellee, D.C. No. 2:11-cr-00050-GAF-TJH
v.
MEMORANDUM*
JOSE LUIS VILLASENOR, a.k.a. Booger
Eyes, a.k.a. Green Eyes,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Jose Luis Villasenor appeals pro se from the district court’s order denying
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Villasenor contends that he is eligible for a sentence reduction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Amendment 782 to the Sentencing Guidelines. We review de novo whether a
district court had authority to modify a sentence under section 3582(c)(2). See
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Because Villasenor
was sentenced after the district court accepted the parties’ Federal Rule of Criminal
Procedure 11(c)(1)(C) plea agreement, he is not eligible for relief under section
3582(c)(2) unless “the district court’s decision to accept the plea and impose the
recommended sentence was based on the Guidelines.” United States v. Davis, 825
F.3d 1014, 1027 (9th Cir. 2016) (en banc) (quotations omitted). The record
illustrates the district court accepted the plea agreement’s sentencing
recommendation for reasons unrelated to the Guidelines. Unlike in Davis,
Villasenor’s plea agreement did not set forth a base offense level under the
Guidelines or discuss applicable enhancements or reductions. See id.
Furthermore, at sentencing the district court made clear it was imposing the
recommended sentence “pursuant to the agreement of the parties” regardless of the
applicable Guidelines range it initially calculated. See United States v. Rodriguez-
Soriano, 855 F.3d 1040, 1045 (9th Cir. 2017) (“Although the court began by
calculating the range, that initial calculation alone did not satisfy § 3582(c)(2)’s
‘based on’ requirement, nor did it suffice that the court’s discretion was ‘framed by
the Guidelines’ in some abstract way.”) (citing Davis, 825 F.3d at 1023 & n.9,
1026).
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Villasenor’s motion for summary reversal is denied. Although the district
court relied on United States v. Austin, 676 F.3d 924 (9th Cir. 2012), which was
subsequently overruled by Davis, its denial of Villasenor’s section 3582(c)(2)
motion was proper.
AFFIRMED.
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