                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30225

                Plaintiff-Appellee,             D.C. No. 9:11-cr-00049-DWM

 v.
                                                MEMORANDUM*
JOSHUA REED LEWIS,

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                          Submitted December 18, 2017**

Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Joshua Reed Lewis appeals from the district court’s order denying his

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

jurisdiction under 28 U.S.C. § 1291. We review de novo whether a district court

had authority to modify a sentence under section 3582(c)(2), see United States v.



      *
             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).
Leniear, 574 F.3d 668, 672 (9th Cir. 2009), and we affirm.

      Lewis contends that he is entitled to a sentence reduction under Amendment

782 to the Sentencing Guidelines. The district court correctly concluded that

Lewis is ineligible for a sentence reduction because his sentence is already below

the minimum of the amended Guidelines range. See U.S.S.G. § 1B1.10(b)(2)(A)

(“[T]he 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.”). Contrary to Lewis’s contention, the

application of section 1B1.10(b)(2)(A) to his case does not violate the Ex Post

Facto Clause. See United States v. Waters, 771 F.3d 679, 680-81 (9th Cir. 2014);

see also United States v. Ornelas, 825 F.3d 548, 555 n.9 (9th Cir. 2016) (relying on

Waters to reject Ex Post Facto claim). Lewis’s remaining constitutional and

statutory challenges to section 1B1.10(b)(2) are foreclosed. See United States v.

Padilla-Diaz, 862 F.3d 856, 860-63 (9th Cir. 2017) (section 1B1.10(b)(2) does not

violate a defendant’s right to equal protection or due process, or impermissibly

conflict with 28 U.S.C. § 991(b)); United States v. Davis, 739 F.3d 1222, 1226 (9th

Cir. 2014) (section 1B1.10(b)(2) does not violate separation of powers).

      AFFIRMED.




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