eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Ninth Circuit
 2019-07

United States v. Amado Maldonado ( 2019 )


Menu:
 
  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUL 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No. 18-10431
Plaintiff-Appellee,             D.C. No. 1:09-cr-00024-LJO-1
v.
MEMORANDUM*
AMADO MALDONADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 15, 2019**
Before:      SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Amado Maldonado appeals pro se from the district court’s order denying his
motions for a sentence reduction under
    18 U.S.C. § 3582
    (c)(2) and for relief under
Federal Rule of Civil Procedure 60(b). We have jurisdiction under
    28 U.S.C. § 1291
    , and we affirm in part and dismiss in part.
*
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).
Maldonado first contends that the district court erred by denying his motion
for a sentence reduction under Amendment 794 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). The district court correctly determined that Maldonado is ineligible for a
sentence reduction because Amendment 794 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). We do not reach Maldonado’s contentions regarding the district
court’s alleged errors in calculating the Guidelines range at resentencing because
these arguments are not cognizable in a section 3582(c)(2) proceeding. See Dillon
v. United States,
    560 U.S. 817
    , 825-26, 831 (2010) (alleged errors unrelated to an
amendment that lowers the defendant’s guideline range are outside the scope of a
section 3582(c)(2) proceeding).
Maldonado next contends that the district court erred by denying his Rule
60(b) motion. The district court properly construed Maldonado’s purported Rule
60(b) motion as a disguised motion for post-conviction relief under
    28 U.S.C. § 2255
    . See United States v. Washington,
    653 F.3d 1057
    , 1065 (9th Cir. 2011).
Accordingly, Maldonado requires a certificate of appealability (“COA”) to proceed
2                                    18-10431
with this portion of his appeal. See
    28 U.S.C. § 2253
    (c)(1)(B); Muth v. Fondren,
    676 F.3d 815
    , 822 (9th Cir. 2012). We treat Maldonado’s briefing as a request for
a COA. See 9th Cir. R. 22-1(e). So treated, the motion is denied because
Maldonado has not made a “substantial showing of the denial of a constitutional
right.” See
    28 U.S.C. § 2253
    (c)(2); Slack v. McDaniel,
    529 U.S. 473
    , 484 (2000).
We, therefore, dismiss Maldonado’s appeal of the district court’s denial of his
purported Rule 60(b) motion. See Muth,
    676 F.3d at 823
    .
AFFIRMED in part; DISMISSED in part.
3                                   18-10431