United States v. Michael Ioane ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10204
Plaintiff-Appellee, D.C. No. 1:09-cr-00142-LJO-3
v.
MICHAEL S. IOANE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges
Michael S. Ioane 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.
Ioane contends that the district court erred by denying his motion for a
*
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).
sentence reduction under Amendment 791 to the Sentencing Guidelines, which
amended the monetary loss table in U.S.S.G. § 2B1.1(b)(1). 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). The
district court correctly denied Ioane’s motion because Amendment 791 is not a
covered amendment under U.S.S.G. § 1B1.10(d). See U.S.S.G. § 1B1.10 cmt.
n.1(A) (“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered
only by an amendment listed in subsection (d).”); United States v. Ornelas, 825
F.3d 548, 550 & n.3 (9th Cir. 2016). Because Ioane is ineligible for a sentence
reduction, the district court could not grant a reduction based on his post-
sentencing behavior or the 18 U.S.C. § 3553(a) sentencing factors. See Dillon v.
United States, 560 U.S. 817, 826-27 (2010).
We do not reach Ioane’s other contentions regarding, inter alia, his
conviction, initial sentencing, direct appeal, and motion for habeas relief under 28
U.S.C. § 2255, because these arguments are not cognizable in section 3582(c)(2)
proceedings. See Dillon, 560 U.S. at 825-826, 831 (alleged errors unrelated to an
amendment that lowers the defendant’s guideline range are outside the scope of a
section 3582(c)(2) proceeding).
Ioane’s motion for an extension of time to file a reply brief is denied as moot
because his reply brief was timely submitted. All other pending motions are
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denied.
AFFIRMED.
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