United States v. Narco Gallon , 552 F. App'x 712 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10580
Plaintiff - Appellant, D.C. No. 4:08-cr-00813-DLJ-1
v.
MEMORANDUM*
NARCO LOMACK GALLON,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, Senior District Judge, Presiding
Submitted January 15, 2014**
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.
The United States of America appeals the district court’s order reducing
Defendant Narco Gallon’s term of imprisonment from 78 months to 66 months.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Raymond J. Dearie, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
Reviewing de novo the district court’s jurisdiction under 18 U.S.C. § 3582 to
reduce Defendant’s sentence, United States v. Leniear, 574 F.3d 668, 672 (9th Cir.
2009), we reverse and remand.
As Defendant concedes, under our decision in United States v. Pleasant, 704
F.3d 808 (9th Cir. 2013), cert. denied, 2013 WL 4744128 (U.S. Dec. 16, 2013)
(No. 13-6147), the district court lacked jurisdiction to reduce Defendant’s
sentence. The "guideline range applicable to" Defendant for purposes of U.S.S.G.
§ 1B1.10(a)(1) was the Career Offender Guideline, U.S.S.G. § 4B1.1. Pleasant,
704 F.3d at 812. Because the Sentencing Commission has not lowered that range,
"the district court did not have jurisdiction either to hear [Defendant’s] § 3582(c)
motion or to act sua sponte." Id. Accordingly, we reverse the district court’s order
and remand with instructions to reinstate Defendant’s original sentence.
REVERSED and REMANDED.
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