United States v. Juan Bautista , 531 F. App'x 788 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 21 2013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. 12-30131
Plaintiff - Appellee, D.C. No. 2:08-cr-00082-RSL
v.
JUAN SALINAS BAUTISTA, a.k.a. DJ, MEMORANDUM *
a.k.a. Jose Morales Victoria,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Juan Salinas Bautista appeals pro se from the district court’s order denying
his motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Salinas Bautista contends that he is entitled to a sentence reduction based
*
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).
upon amendments to the Sentencing Guidelines promulgated in connection with
the Fair Sentencing Act (“FSA”), which he also argues should be given retroactive
effect. We review de novo whether the district court had authority to modify the
sentence. See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009).
The FSA and related Guidelines amendments had no effect upon either the
statutory or the advisory Sentencing Guidelines ranges applicable in Salinas
Bautista’s case. His base offense level of 32, which was dictated by the quantities
of powder cocaine involved in the case, remains unchanged under the amendments,
see U.S.S.G. § 2D1.1(c), and his statutory sentencing range on the one count that
involved both powder and crack cocaine would remain 10 years-to-life under the
FSA even if, contrary to our precedent, see United States v. Baptist, 646 F.3d 1225(9th Cir. 2011) (per curiam), the act were given retroactive effect. See 21 U.S.C.
§ 841(b)(1)(A)(ii). Accordingly, his sentence was not “based on a sentencing
range that has subsequently been lowered by the Sentencing Commission,” and the
district court properly denied the motion. See 18 U.S.C. § 3582(c)(2); Leniear,
574 F.3d at 673-74.
AFFIRMED.
2 12-30131