United States v. David Hill , 633 F. App'x 396 ( 2016 )

FILED
NOT FOR PUBLICATION JAN 28 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10509
Plaintiff - Appellee, D.C. No. 4:04-cr-40052-DLJ
v.
MEMORANDUM*
DAVID CHARLES HILL, a.k.a. Mack
Truck,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
David Charles Hill appeals 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. Reviewing de novo, see United States v. Leniear, 574 F.3d 668,
*
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).
672 (9th Cir. 2009), we affirm.
As Hill does not dispute, he is ineligible for a sentence reduction under
Amendments 706 and 750 to the Sentencing Guidelines because he was sentenced
as a career offender under U.S.S.G. § 4B1.1. See United States v. Charles, 749
F.3d 767, 770-71 (9th Cir. 2014). Hill argues, however, that the statutory
amendments under the Fair Sentencing Act (“FSA”), which would have the effect
of lowering his base offense level under U.S.S.G. § 4B1.1, should be applied to
him. This argument fails. The FSA does not apply retroactively to defendants,
like Hill, who were sentenced before the Act’s effective date. See United States v.
Baptist, 646 F.3d 1225, 1229 (9th Cir. 2011). Contrary to Hill’s claim, the
disparate treatment between pre- and post-Act offenders, which occurs any time an
ameliorative statute is deemed not to be retroactive, does not violate his
constitutional rights. See id. at 1228-30; see also United States v. Augustine, 712
F.3d 1290, 1294-95 (9th Cir. 2013). We disagree with Hill that Dorsey v. United
States, 132 S. Ct. 2321 (2012), compels a different result. See id. at 2335
(recognizing that, even though disparities may result, “in federal sentencing the
ordinary practice is to apply new penalties to defendants not yet sentenced, while
withholding that change from defendants already sentenced”).
AFFIRMED.
2 14-10509