                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30307

                Plaintiff-Appellee,             D.C. No.
                                                2:13-cr-00024-SEH-2
 v.

JESUS E. ELIZONDO,                              MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                      Submission Deferred February 7, 2018
                          Submitted August 6, 2018**
                              Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

      Jesus Elizondo appeals the district court’s denial of his motion pursuant to

18 U.S.C. § 3582(c)(2) for reduction of sentence based on retroactive Sentencing

Guidelines Amendment 782. In light of Amendment 782 and Koons v. United



      *
             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).
States, 138 S. Ct. 1783 (2018), Defendant was eligible for a sentence reduction

under 18 U.S.C. § 3582(c)(2) because his sentence was “based on a sentencing

range that has subsequently been lowered by the Sentencing Commission.” 18

U.S.C. § 3582(c)(2). At the original sentencing, the district court calculated

Defendant’s Guidelines range to be 121 to 151 months. It then noted that were it

not for the Government’s U.S.S.G. § 5K1.1 motion, the court “would have felt

entirely obligated to impose a sentence at the upper end of that guideline range.”

However, the court decided to “act favorably upon that motion” and sentenced

Defendant to a term of imprisonment below the upper end of the Guidelines range.

The court did not believe that a sentence “less than the statutory minimum of 120

months” would be adequate, so it sentenced Defendant to 120 months.

      In light of the above, Defendant’s Guidelines range “played ‘a relevant part

[in] the framework the [sentencing] judge used’ in imposing the sentence,” and

thus, the sentence was “based on” that Guidelines range, making Defendant

eligible for a sentence reduction. Koons, 138 S. Ct. at 1788 (alterations in original)

(quoting Hughes v. United States, 138 S. Ct. 1765, 1778 (2018)). Both parties

agree that Defendant is eligible for a sentence reduction. We vacate the sentence

and remand to the district court for further proceedings consistent with this

disposition.

      VACATED AND REMANDED.



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