                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30139

                Plaintiff-Appellee,             D.C. No. 2:11-cr-00107-WFN-11

 v.
                                                MEMORANDUM*
FELIX RUBEN RODRIGUEZ,

                Defendant-Appellant.

                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Wm. Fremming Nielsen, District Judge, Presiding

                             Submitted May 16, 2019**
                               Seattle, Washington

Before: O’SCANNLAIN and FRIEDLAND, Circuit Judges, and PAULEY,***
District Judge.

      Felix Ruben Rodriguez appeals the district court’s order denying his motion

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


      *
             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).
      ***
            The Honorable William H. Pauley III, United States District Judge for
the Southern District of New York, sitting by designation.
28 U.S.C. § 1291, and we affirm.

      We review de novo the district court’s determination whether it had

authority to resentence the defendant pursuant to 18 U.S.C. § 3582(c)(2). United

States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir. 2000). We review the district

court’s denial of the motion for a reduced sentence under § 3582(c)(2) for abuse of

discretion. United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009).

      Rodriguez pleaded guilty in 2012 to conspiracy to distribute

methamphetamine and cocaine in violation of the Controlled Substances Act, 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. In 2013, the district court sentenced him

principally to a mandatory minimum term of 120 months’ imprisonment. While he

frames his motion as one for a sentence reduction under § 3582(c)(2), Rodriguez in

essence seeks retroactive safety valve consideration pursuant to 18 U.S.C.

§ 3553(f).

      “[T]o invoke the district court’s authority to modify his sentence under

§ 3582(c)(2), [a defendant] must demonstrate that he was sentenced pursuant to a

‘sentencing range that has subsequently been lowered.’” United States v.

Mullanix, 99 F.3d 323, 324 (9th Cir. 1996) (quoting 18 U.S.C. § 3582(c)(2)).

However, “[a] retroactive amendment to the Guidelines cannot reduce a sentence

below the statutory minimum term.” United States v. Sykes, 658 F.3d 1140, 1146

(9th Cir. 2011). And “[i]f a defendant was not originally sentenced ‘based on a


                                         2
sentencing range,’ he is not eligible for a sentence modification under Section

3582(c)(2).” United States v. Buenrostro, 895 F.3d 1160, 1164 (9th Cir. 2018)

(quoting United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009) (per curiam)).

      First, we reject Rodriguez’s argument that Amendment 782 entitles him to a

sentence reduction. Rodriguez received a sentence of 120 months’ imprisonment

pursuant to a statutory mandatory minimum. See 21 U.S.C. § 841(b). A district

court cannot modify a sentence under § 3582(c)(2) where “the mandatory

minimum, [and] not the Sentencing Guidelines range, [provided] . . . the starting

point for determining [the defendant’s] sentence.” United States v. Jackson, 577

F.3d 1032, 1035 (9th Cir. 2009). Accordingly, the district court properly

concluded that it lacked the authority to resentence Rodriguez. See Paulk, 569

F.3d at 1095.

      Second, Rodriguez may not sidestep the mandatory minimum by arguing

that he now qualifies for safety valve relief following the vacatur of a prior state

conviction. On its face, § 3582(c)(2) does not contemplate retroactive application

of the safety valve. Moreover, both the plain language of 18 U.S.C. § 3553(f) and

longstanding precedent dictate that safety valve eligibility is determined at the time

of sentencing and is not available retroactively. See United States v. Stockdale,

129 F.3d 1066, 1068 (9th Cir. 1997). Here, vacatur of Rodriguez’s state court

conviction did not occur until 2017—four years after his sentencing in this case


                                           3
and 14 years after the state court sentencing. Nor does modification of a sentence

under § 3582(c)(2) “amount to a new sentencing for purposes of the safety valve

statute.” Stockdale, 129 F.3d at 1068. And in any event, “[w]hen a state grants

post-conviction relief to a defendant with respect to his state felony conviction, we

do not generally apply those changes retroactively for purposes of determining

whether a federal sentencing statute’s requirements are met.” United States v.

Diaz, 838 F.3d 968, 972 (9th Cir. 2016).

      For these reasons, the district court did not abuse its discretion in denying

Rodriguez’s § 3582(c)(2) motion.

      AFFIRMED.




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