United States v. Justin Alford , 519 F. App'x 472 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30136
Plaintiff - Appellee, D.C. No. 2:09-cr-00009-TSZ
v.
MEMORANDUM *
JUSTIN BLAIR ALFORD,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Justin Blair Alford appeals from the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
Alford contends that he is entitled to a sentence reduction based on
*
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).
Amendment 750 to the Sentencing Guidelines. We review de novo whether the
district court had jurisdiction to modify a defendant’s sentence under section
3582(c)(2). See United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012). Alford
is not eligible for a sentence reduction because his sentence was based on the
parties’ stipulation in a binding plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C), and not on a sentencing range that has been subsequently
lowered by the Sentencing Commission, as required by section 3582(c)(2). See
Freeman v. United States, 131 S. Ct. 2685, 2695-96 (2011) (Sotomayor, J.,
concurring). The plea agreement does not call for Alford to be sentenced within a
particular Guidelines sentencing range, nor is any such Guidelines range expressly
used in the agreement or evident from the agreement itself. See id. at 2697-98.
Accordingly, the district court lacked jurisdiction to modify Alford’s sentence
under section 3582(c)(2). See Austin, 676 F.3d at 930.
Alford urges us to reconsider our decision in Austin. We are bound by that
decision. See United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009).
Alford finally contends that Dorsey v. United States, 132 S. Ct. 2321 (2012),
supports remand. This contention fails both because the district court lacked
jurisdiction to modify the sentence and because Alford was sentenced before the
Fair Sentencing Act took effect. See Dorsey, 132 S. Ct. at 2335; United States v.
Augustine, No. 12-50061, 2013 WL 1317037, at *5 (9th Cir. Apr. 3, 2013).
AFFIRMED.
2 12-30136