                           NOT FOR PUBLICATION                           FILED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.




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