                                                                           FILED
                           NOT FOR PUBLICATION                             APR 14 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10202

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00304-PJH-1

  v.
                                                 MEMORANDUM*
MAURICE JEROME ST. JAMES, Jr.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                             Submitted April 9, 2014**
                             San Francisco, California

Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.

       Maurice St. James appeals the district court’s order denying his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2). “We review de novo whether a




        *
             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).
district court has jurisdiction to resentence a defendant under 18 U.S.C. § 3582.”

United States v. Pleasant, 704 F.3d 808, 810 (9th Cir. 2013). We affirm.1

      St. James’s sentence cannot be reduced under § 3582(c)(2) because it is not

“based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” Id. (quotation marks and citation omitted). In his plea

agreement, St. James stipulated that the career offender guidelines in U.S.S.G. §

4B1.1 would be used to calculate his sentence. At the sentencing hearing, both the

court and St. James’s attorney reaffirmed that the agreement adopted the career

offender guideline range. The plea agreement never mentioned the subsequently

amended drug quantity tables in U.S.S.G. § 2D1.1. St. James is ineligible for a

sentence reduction under § 3582(c)(2) because his sentence was “based on” the

career offender guidelines rather than the drug quantity guidelines. See Freeman v.

United States, 131 S. Ct. 2685, 2697–98 (2011) (controlling opinion of Sotomayor,

J.); United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009) (“[W]ith respect to

      1
        We need not address whether St. James waived his right to file a § 3582
motion in his plea agreement because the district court expressly invoked its sua
sponte authority to decide whether to reduce his sentence. See 18 U.S.C. §
3582(c)(2) (“[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission . . . , upon motion of the defendant or the Director of
the Bureau of Prisons, or on its own motion, the court may reduce the term of
imprisonment . . . if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” (emphasis added)).

                                          2
the first prong of 18 U.S.C. § 3582(c)(2), a drug offense sentence that is ‘based on’

a sentencing range calculated under U.S.S.G. § 4B1.1 because the defendant was a

career offender cannot have been ‘based on’ a sentencing range calculated under

the § 2D1.1 drug amount table. The two sentencing schemes are mutually

exclusive.”).

      Alternatively, St. James’s sentence cannot be altered under § 3582(c)(2)

because a reduction would not be “consistent with applicable policy statements

issued by the Sentencing Commission.” Pleasant, 704 F.3d at 810 (quotation

marks and citation omitted). The amendment to the drug quantity tables in § 2D1.1

“does not have the effect of lowering the defendant’s applicable guideline range,”

U.S.S.G. § 1B1.10(a)(2), because St. James’s “applicable guideline range” is the

career offender guidelines in § 4B1.1. See U.S.S.G. § 1B1.10 cmt. n.1(a);

Pleasant, 704 F.3d at 811–12. Application Note 1(a) is consistent with §

3582(c)(2) and the Fair Sentencing Act of 2010, both of which contemplate that

the Commission will adopt policy statements defining the scope of the defendant’s

eligibility for a sentencing reduction. See 18 U.S.C. § 3582(c)(2); Fair Sentencing

Act of 2010 § 8, Pub. L. No. 111-220, 124 Stat. 2372; see also Dillon v. United

States, 560 U.S. 817, 826 (2010) (commenting on “[t]he substantial role Congress

gave the Commission with respect to sentence-modification proceedings”). The


                                          3
delegation of authority to the Commission to promulgate policy statements and

interpretive commentary is consistent with separation-of-powers principles. See

Mistretta v. United States, 488 U.S. 361, 390 (1989); United States v. Fox, 631

F.3d 1128, 1133 (9th Cir. 2011).

      AFFIRMED.




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