                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 10 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50287

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03180-CAB-1

 v.
                                                 MEMORANDUM*
MAYRA EUNICE ARAGON-
RODRIGUEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Cathy Ann Bencivengo, District Judge, Presiding

                          Submitted November 19, 2015**
                              Pasadena, California

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

      Mayra Aragon-Rodriguez (“Aragon-Rodriguez”) appeals the district court’s

denial of her motion to reduce her sentence. Aragon-Rodriguez pleaded guilty to

importation of cocaine in violation of 21 U.S.C. §§ 952 and 960, and the district

        *
             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).
court sentenced her to 33 months’ imprisonment. On May 29, 2015,

Aragon-Rodriguez, through counsel, moved to reduce her sentence under 18

U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing

Commission Guidelines Manual (USSG). The district court denied

Aragon-Rodriguez’s motion because her original sentence of 33 months was

already less than the minimum term of the “amended guideline range” under

USSG § 1B1.10(b)(2)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291.

United States v. Dunn, 728 F.3d 1151, 1155–56 (9th Cir. 2013); see also United

States v. Tercero, 734 F.3d 979, 980 (9th Cir. 2013). We affirm.

      “We review for abuse of discretion a district court’s ruling on a motion for

reduction of sentence pursuant to § 3582(c)(2).” Tercero, 734 F.3d at 981.

Underlying questions of law are reviewed de novo. See United States v. Davis,

739 F.3d 1222, 1223 (9th Cir. 2014).

      In 2014, the United States Sentencing Commission promulgated

Amendment 782 to the Guidelines which reduced the base offense levels in the

drug quantity table. USSG supp. app. C, amend. 782 (2014). The reduced base

offense level in the drug quantity table in turn reduced the sentencing guideline

range that the district court uses as a starting point to determine the sentence. The

Commission made the reduction in Amendment 782 retroactive in Amendment


                                           2
788. USSG, supp. app. C, amend. 788 (2014). However, the Guidelines provide

that “the court shall not reduce the defendant’s term of imprisonment under 18

U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the

minimum of the amended guideline range . . . .” USSG § 1B1.10(b)(2)(A). The

text, structure, and commentary of the Guidelines as well as supporting case law

support the conclusion that the “amended guideline range” does not include

departures from the sentencing guidelines, except a departure for substantial

assistance to government authorities. See USSG §§ 1B1.1(a) & cmt. (n.1(E)),

1B1.10(b) & cmt. (n.3); Davis, 739 F.3d at 1224; Tercero, 734 F.3d at 981–82;

Notice of Final Action Regarding Amendment to Policy Statement 1B1.10, 76 Fed.

Reg. 41332, 41334 (July 13, 2011). Thus, the district court properly calculated

Aragon-Rodriguez’s amended guideline range as 46 to 57 months of imprisonment

in her re-sentencing proceeding, and excluded the 4-level fast-track downward

departure that the court granted in her original sentencing. Because

Aragon-Rodriguez’s original 33-month sentence is lower than 46 months, the

minimum term in the “amended guideline range,” the district court did not err in

denying her motion to reduce her sentence. See USSG § 1B1.10(b)(2)(A).

      AFFIRMED.




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