                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                            JUN 21 2013

                                                                        MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 12-30152            U .S. C O U R T OF APPE ALS



               Plaintiff - Appellee,             D.C. No. 3:02-cr-00100-HRH

  v.

RICARDO CRUZAGOSTO,                              MEMORANDUM *

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                    H. Russel Holland, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Ricardo Cruzagosto appeals from the district court’s order denying his

motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Cruzagosto contends that he is entitled to a sentence reduction under

Amendments 748 and 750 to the Sentencing Guidelines. We review de novo.

United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). The district court


          *
             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).
correctly determined that it was without authority to reduce Cruzagosto’s 168-

month sentence, as that sentence was at the bottom of the amended advisory

Sentencing Guidelines range. See 18 U.S.C. § 3582(c)(2) (permitting reduction of

sentence only where “such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission”); U.S.S.G. § 1B1.10(b)(2)(A)

(“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”).

      Cruzagosto nonetheless argues that the district court should have treated his

four-level variance as a “guideline application decision[]” entitled to consideration

under U.S.S.G. § 1B1.10(b)(1). The language of and commentary to section

1B1.10(b)(2)(A) squarely foreclose his position. See U.S.S.G. § 1B1.10(b)(2)(A)

& cmt. n.3 (subsection (b)(2)(A) applies even where the district court imposed a

downward variance at sentencing).

      AFFIRMED.




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