                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30283

                Plaintiff-Appellee,             D.C. No.
                                                2:09-cr-00062-RSM-1
 v.

QUY DINH NGUYEN, AKA The Boss,                  MEMORANDUM*
AKA The Godfather, AKA The Old Man,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ricardo S. Martinez, Chief Judge, Presiding

                           Submitted February 7, 2018**
                              Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

      Quy Dinh Nguyen appeals the district court’s denial of his motion for

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

      Nguyen pled guilty to conspiracy to manufacture marijuana and was


      *
             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).
sentenced to 304 months imprisonment, to run concurrently with his identical

Washington state court sentence for second degree murder and conspiracy to

commit leading organized crime. In July 2016, about four years into his sentence,

Nguyen filed a motion for reduction of sentence pursuant to 18 U.S.C.

§ 3582(c)(2). He argued that Amendment 782 to the United States Sentencing

Guidelines resulted in a two-level decrease to his total offense level, thereby

reducing his guideline range by approximately thirty-five months, from 155–188

months to 121–151 months. Nguyen further contended that a sentencing reduction

was warranted in light of the factors enumerated in 18 U.S.C. § 3553(a). The

district court denied the motion after concluding, inter alia, that Nguyen’s sentence

was not “based on” a subsequently lowered guideline range as required for a

reduction under section 3582(c)(2). Nguyen timely appealed.

      “In deciding whether to reduce a sentence under § 3582(c)(2), a district court

first determines a defendant’s eligibility for a reduction.”1 United States v.




1
  A defendant’s eligibility for a reduction of sentence is a jurisdictional prerequisite
to granting a motion for reduction of sentence under section 3582(c)(2). United
States v. Davis, 825 F.3d 1014, 1028 n.14 (9th Cir. 2016) (en banc); United States
v. Trujillo, 713 F.3d 1003, 1006 (9th Cir. 2013). Although we generally review the
denial of a motion for reduction of sentence for abuse of discretion, United States
v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010), the question “[w]hether a district
court has jurisdiction to modify a defendant’s sentence under 18 U.S.C.
§ 3582(c)(2) is a legal question that we review de novo,” Davis, 825 F.3d at 1019
n.6.

                                           2
Rodriguez-Soriano, 855 F.3d 1040, 1042 (9th Cir. 2017) (internal citation omitted).

To be eligible for a sentencing reduction under section 3582(c)(2), “a defendant

must show . . . that his sentence was ‘based on’ a guideline range that has since

been lowered.” Id. (quoting 18 U.S.C. § 3582(c)(2)). A sentence is not “based on”

a subsequently lowered guideline range if the guideline range “‘played no role’ in

the district court’s determination of the appropriate sentence.” Id. at 1043 (quoting

United States v. Davis, 825 F.3d 1014, 1023 (9th Cir. 2016) (en banc)).

      Nguyen’s sentence was not “based on” his subsequently lowered guideline

range of 155 to 188 months. First, the sentencing recommendation that the parties

agreed to in the federal plea agreement was not “clearly rooted in the Guidelines.”

Davis, 825 F.3d at 1027. The parties agreed to recommend a sentence “identical to

the sentence to be imposed in the related [state] case.” The state court sentence, in

turn, was the sentence recommended by the State in the state plea agreement and

was tied to the state sentencing range. The federal plea agreement appended the

state plea agreement “to reflect the full extent of the promises and consideration

provided to [Nguyen].”

      Second, at the federal sentencing hearing, the district court explained that

“[t]he recommended sentence by both sides, the 304 months, is obviously tied to

what happened in the state court process. The parties bargained for that to run

concurrently with each other, and the court has no objection to making the


                                          3
sentences concurrent” (emphasis added). Although the district court previously

calculated Nguyen’s guideline range as it was required to do, the court did not

mention the guidelines again. See Rodriguez-Soriano, 855 F.3d at 1044.

      Third, the district court confirmed its reasoning in its written “Statement of

Reasons.” In response to the prompt, “[e]xplain the facts justifying a sentence

outside the advisory guideline system,” the court explained: “Pursuant to the plea

agreement . . . the parties agreed to recommend 304 months custody, the same

sentence the defendant received in [state court]. The Court concurred with the plea

agreement and imposed a sentence of 304 months custody, an upward variance

from the established guideline range.”

      Accordingly, we agree with the district court that “[Nguyen’s] sentence of

304 months was not, in any way, based on or even related to the original federal

sentencing range of 151 to 188 months.” Because the district court lacked

jurisdiction to grant Nguyen’s motion for reduction of sentence, we do not address

Nguyen’s arguments as to the section 3553(a) factors.

      AFFIRMED.




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