                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 21 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30110

               Plaintiff - Appellee,             D.C. No. 9:11-cr-00015-DWM

 v.
                                                 MEMORANDUM*
DAVID DERRYBERRY,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      David Derryberry appeals from the district court’s order granting 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 the district court has authority to



          *
             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).
modify a sentence under section 3582(c)(2), see United States v. Leniear, 574 F.3d

668, 672 (9th Cir. 2009), and we affirm.

      The district court reduced Derryberry’s sentence from 96 months to 92

months based on Amendment 782 to the Sentencing Guidelines. Derryberry

contends that the district court erred by failing to reduce his sentence further.

Because 92 months was the minimum of Derryberry’s amended guideline range,

the district court was precluded from reducing the sentence further. See U.S.S.G.

§ 1B1.10(b)(2)(A) (except in a case of a government motion for a departure based

on substantial assistance, a district court “shall not reduce the defendant’s term of

imprisonment . . . to a term that is less than the minimum of the amended guideline

range”); United States v. Davis, 739 F.3d 1222, 1224 (9th Cir. 2014). Contrary to

Derryberry’s contention, the application of section 1B1.10(b)(2)(A) to his case

does not violate the Ex Post Facto Clause because it did not “increase the

punishment for his crime over what was imposed when he was sentenced.” See

United States v. Waters, 771 F.3d 679, 681 (9th Cir. 2014).

      AFFIRMED.




                                           2                                        15-30110
