United States v. Joshua Lewis ( 2017 )

  •                            NOT FOR PUBLICATION                           FILED
                        UNITED STATES COURT OF APPEALS                       DEC 20 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    16-30225
                    Plaintiff-Appellee,             D.C. No. 9:11-cr-00049-DWM
                       Appeal from the United States District Court
                               for the District of Montana
                       Donald W. Molloy, District Judge, Presiding
                              Submitted December 18, 2017**
    Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
          Joshua Reed Lewis appeals 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. We review de novo whether a district court
    had authority to modify a sentence under section 3582(c)(2), see United States v.
                 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).
    574 F.3d 668
    , 672 (9th Cir. 2009), and we affirm.
          Lewis contends that he is entitled to a sentence reduction under Amendment
    782 to the Sentencing Guidelines. The district court correctly concluded that
    Lewis is ineligible for a sentence reduction because his sentence is already below
    the minimum of the amended Guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A)
    (“[T]he court shall not reduce the defendant’s term of imprisonment under 18
    U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the
    minimum of the amended guideline range.”). Contrary to Lewis’s contention, the
    application of section 1B1.10(b)(2)(A) to his case does not violate the Ex Post
    Facto Clause. See United States v. Waters, 
    771 F.3d 679
    , 680-81 (9th Cir. 2014);
    see also United States v. Ornelas, 
    825 F.3d 548
    , 555 n.9 (9th Cir. 2016) (relying on
    Waters to reject Ex Post Facto claim). Lewis’s remaining constitutional and
    statutory challenges to section 1B1.10(b)(2) are foreclosed. See United States v.
    862 F.3d 856
    , 860-63 (9th Cir. 2017) (section 1B1.10(b)(2) does not
    violate a defendant’s right to equal protection or due process, or impermissibly
    conflict with 28 U.S.C. § 991(b)); United States v. Davis, 
    739 F.3d 1222
    , 1226 (9th
    Cir. 2014) (section 1B1.10(b)(2) does not violate separation of powers).
                                              2                                     16-30225

Document Info

DocketNumber: 16-30225

Filed Date: 12/20/2017

Modified Date: 12/20/2017