                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 14 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50307

              Plaintiff-Appellee,                D.C. No.
                                                 2:99-cr-01274-PA-19
 v.

HECTOR RODRIGUEZ-RAMIREZ,                        MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                     Argued and Submitted December 3, 2018
                              Pasadena, California

Before: TASHIMA and IKUTA, Circuit Judges, and KENNELLY,** District
Judge.

      Hector Rodriguez-Ramirez appeals the district court’s denial of his motion

for a sentence reduction under 18 U.S.C. § 3582(c)(2). We affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
      The district court did not err in calculating Rodriguez-Ramirez’s amended

guidelines range. Consistent with § 1B1.10(b)(1) of the U.S. Sentencing

Guidelines, the court correctly substituted the new base offense level of 32 (which

was applicable to Rodriguez-Ramirez’s offense under the amended § 2D1.1(c) of

the guidelines) in place of the prior base offense level of 38, and then applied the

grouping rules under §§ 3D1.3 and 3D1.4 to arrive at a combined adjusted offense

level of 34. See United States v. Waters, 648 F.3d 1114, 1117–18 (9th Cir. 2011);

see also United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). The court

then correctly applied the three level adjustment for acceptance of responsibility to

arrive at a total offense level of 31, resulting in a guidelines range of 151 to 188

months, given Rodriguez-Ramirez’s criminal history category.

      The district court did not abuse its discretion in weighing the factors listed in

18 U.S.C. § 3553(a) to conclude that a sentencing reduction was not warranted.

See United States v. Mercado-Moreno, 869 F.3d 942, 949 (9th Cir. 2017). It

adequately addressed Rodriguez-Ramirez’s nonfrivolous arguments for a reduced

sentence under 18 U.S.C. § 3553(a)(1). The court explained its reasons for

determining that—contrary to Rodriguez-Ramirez’s contentions—“the nature and

circumstances of the offense and the history and characteristics of the defendant,”

18 U.S.C. § 3553(a)(1), did not weigh in favor of a lower sentence. Among other


                                           2
things, the court noted that Rodriguez-Ramirez participated in a violent criminal

enterprise, engaged in acts of violence, was part of a conspiracy to murder a fellow

gang member, and had a prior felony conviction for manslaughter. Nor did the

district court abuse its discretion in rejecting Rodriguez-Ramirez’s argument that

denying him a sentence reduction would create unwarranted sentencing disparities

with his codefendants, because they were not similarly situated to Rodriguez-

Ramirez. Finally, the district court’s assessment that the sentence of 235 months

was “not a substantial departure” from the amended guidelines range of 151 to 188

months was not a finding of fact, let alone a clearly erroneous finding of fact.

AFFIRMED.




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