United States v. Robert Barroca ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                       DEC 15 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    
    UNITED STATES OF AMERICA,                       No.    16-10296
    
                    Plaintiff-Appellee,             D.C. No.
                                                    3:94-cr-00470-EMC-1
     v.
    
    ROBERT WILLIAM BARROCA,                         MEMORANDUM*
    
                    Defendant-Appellant.
    
                       Appeal from the United States District Court
                         for the Northern District of California
                       Edward M. Chen, District Judge, Presiding
    
                         Argued and Submitted December 5, 2017
                                San Francisco, California
    
    Before: OWENS and FRIEDLAND, Circuit Judges, and BUCKLO,** District
    Judge.
    
          Defendant Robert William Barroca appeals from the district court’s order
    
    denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and
    
    Amendment 782 to the U.S. Sentencing Guidelines. As the parties are familiar
    
    
    
          *
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
          **
                The Honorable Elaine E. Bucklo, United States District Judge for the
    Northern District of Illinois, sitting by designation.
    with the facts, we do not recount them here. We affirm the district court.
    
          To be eligible for reduction, a sentence must be “based on a sentencing
    
    range that has subsequently been lowered by the Sentencing Commission,” and the
    
    reduction must be “consistent with applicable policy statements issued by the
    
    Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The Sentencing Commission’s
    
    applicable policy statements are articulated at U.S. SENTENCING GUIDELINES
    
    MANUAL (“U.S.S.G.”) § 1B1.10. See United States v. Ornelas, 
    825 F.3d 548
    , 550
    
    (9th Cir. 2016). Section 1B1.10(a)(2)(B) states that a reduction is not consistent
    
    with this policy statement if the amendment “does not have the effect of lowering
    
    the defendant’s applicable guideline range.”
    
          Amendment 782 cannot lower Barroca’s guideline range. Under the 2004
    
    sentencing table, Barroca’s adjusted offense level of 39, with a criminal history
    
    category of VI, corresponded to a guideline range of 360 months to life. See
    
    U.S.S.G. ch. 5 pt. A (U.S. SENTENCING COMM’N 2004).1 Amendment 782
    
    amended § 2D1.1 to reduce by two points the base offense level for certain drug
    
    types and quantities. U.S.S.G. app. C, amend. 782 (U.S. SENTENCING COMM’N,
    
    
          1
                 We reject Barroca’s attempt to characterize as unclear the original
    sentencing court’s determination that Barroca had an adjusted offense level of 39
    and criminal history category of VI. The sentencing court clearly stated this
    finding on the record, and we decline to reinterpret the court’s findings to “make
    [them] irrelevant to [Barroca’s] sentencing.” United States v. Spears, 
    824 F.3d 908
    , 914 (9th Cir. 2016).
    
    
                                              2
    2014); see also United States v. Mercado-Moreno, 
    869 F.3d 942
    , 949–50 (9th Cir.
    
    2017) (noting that Amendment 782 increased the quantity of actual
    
    methamphetamine required to trigger the maximum base offense level from 1.5
    
    kilograms to 4.5 kilograms). Amendment 782 would therefore only result in a
    
    two-point reduction in Barroca’s base offense level, leaving him with an adjusted
    
    offense level of 37. With his category VI criminal history, under the 2004
    
    sentencing table, Barroca’s guideline range would still be 360 months to life. See
    
    U.S.S.G. ch. 5 pt. A (2004). Accordingly, Amendment 782 does not lower
    
    Barroca’s guideline range, and a reduction in his sentence is inconsistent with the
    
    policy statements issued by the Sentencing Commission. See U.S.S.G.
    
    § 1B1.10(a)(2)(B); see also Ornelas, 825 F.3d at 554–55 (explaining that
    
    § 1B1.10(a)(2)(B) prohibited resentencing because the defendant’s post-
    
    amendment offense level resulted in a higher applicable guideline range than the
    
    term to which he was originally sentenced). Barroca is therefore ineligible for
    
    resentencing.
    
          AFFIRMED.
    
    
    
    
                                             3
    

Document Info

DocketNumber: 16-10296

Filed Date: 12/15/2017

Modified Date: 12/15/2017