                             NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                         JAN 23 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                         No. 15-30349

                   Plaintiff-Appellee,             D.C. No. 1:09-cr-00130-BMM

   v.
                                                   MEMORANDUM*
 DRURY HILL,

                   Defendant-Appellant.

                     Appeal from the United States District Court
                             for the District of Montana
                      Brian M. Morris, District Judge, Presiding

                             Submitted January 18, 2017**

Before:       TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

        Drury Hill appeals from the district court’s order denying his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

        Hill contends that the district court erred by using the undisputed guideline

        *
             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).
range calculated at sentencing, rather than the lower range calculated in his plea

agreement, to determine his applicable guideline range. Reviewing de novo, see

United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009), we conclude that the

district court properly denied Hill relief. For purposes of a motion for a sentence

reduction, the applicable guideline range is the pre-departure, pre-variance range

calculated by the court at sentencing. See U.S.S.G. § 1B1.10 cmt. n.l(A); United

States v. Ornelas, 825 F.3d 548, 554-55 (9th Cir. 2016) (applicable guideline range

does not include criminal history category departure). This is true even when a

binding plea agreement calculates a lower range to cover the stipulated sentence.

See United States v. Pleasant, 704 F.3d 808, 811-12 (9th Cir. 2013) (applicable

guideline range was career offender range notwithstanding lower range calculated

in the plea agreement), overruled on other grounds by United States v. Davis, 825

F.3d 1014 (9th Cir. 2016) (en banc). Here, the record reflects that the court

correctly calculated an undisputed guideline range of 262 to 327 months, but

agreed to vary downward to impose the stipulated sentence, which was in the

middle of the lower range calculated in the plea agreement. Under these

circumstances, the court correctly determined that the applicable guideline range

was 262 to 327 months, and the amended guideline range was 210 to 262 months.

                                          2                                     15-30349
Because Hill received a 210-month sentence for his drug offense, he is ineligible

for a reduction. See U.S.S.G. § 1B1.10(b)(2)(A) (a sentence may not be reduced

below the minimum of the amended guideline range).

      Hill’s contention that he is entitled to withdraw his guilty plea is outside the

scope of this proceeding. See Dillon v. United States, 560 U.S. 817, 825-26

(2010).

      AFFIRMED.




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