                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 31 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30366

              Plaintiff-Appellee,                D.C. No. 4:05-cr-00130-SEH

 v.
                                                 MEMORANDUM*
SOLOMON BITTON SIMTOB, a.k.a.
Simon Simtob,

              Defendant-Appellant.


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

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and GOULD, Circuit Judges.

      Solomon Bitton Simtob appeals from the district court’s order denying his

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

under 28 U.S.C. § 1291. We may affirm on any ground supported by the record,


      *
             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).
United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006), and we affirm.

      Simtob contends that, in light of the 18 U.S.C. § 3553(a) sentencing factors,

the district court abused its discretion by denying his motion for a sentence

reduction. We do not reach this claim because, reviewing de novo, we agree with

the government that Simtob was ineligible for a reduction. See United States v.

Leniear, 574 F.3d 668, 672 (9th Cir. 2009).

      As Simtob concedes, and the presentence report reflects, the applicable

guideline range in his case is the statutory mandatory minimum of 120 months.

See U.S.S.G. § 5G1.1(b) (where a mandatory minimum sentence is greater than the

maximum of the applicable guideline range, the mandatory minimum “shall be the

guideline sentence”). Thus, Amendment 782 to the Sentencing Guidelines did not

have the effect of lowering Simtob’s guideline range and the district court had no

authority to lower his sentence. See U.S.S.G. § 1B1.10(a)(2)(B) & cmt. n.1(A);

United States v. Paulk, 569 F.3d 1094, 1095-96 (9th Cir. 2009) (a reduction is not

authorized if an amendment does not have the effect of lowering the defendant’s

applicable guideline range because of the operation of a statutory mandatory

minimum). To the extent that Simtob contends that his 240-month sentence is a

miscarriage of justice, that claim is not cognizable in a section 3582(c)(2)




                                           2                                    15-30366
proceeding. See Dillon v. United States, 560 U.S. 817, 826 (2010) (section

3582(c)(2) does not authorize a “plenary resentencing proceeding”).

      AFFIRMED.




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