                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 07 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30006

              Plaintiff - Appellee,              D.C. No. 3:07-cr-05051-RBL-1

       v.
                                                 MEMORANDUM *
CARLOS GONZALEZ-CASTILLO,

              Defendant - Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                           Submitted February 4, 2013 **
                               Seattle, Washington

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Carlos Gonzalez-Castillo appeals the district court’s order denying his

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




        *
         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).
      Section 3582(c)(2) allows a modification of a term of imprisonment when

two requirements are satisfied: (1) the sentence is based on a sentencing range that

subsequently has been lowered by the Sentencing Commission; and (2) such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission. See United States v. Waters, 648 F.3d 1114, 1116 (9th Cir. 2011).

Even assuming Gonzalez-Castillo could satisfy the first requirement, he cannot

satisfy the second.

      The applicable policy statement provides that a reduction in a defendant’s

term of imprisonment is not authorized if an amendment to the Sentencing

Guidelines “does not have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2). The term “applicable guideline range”

refers to the defendant’s guideline range before application of any departure or

variance. See United States v. Pleasant, — F.3d. —, 2013 WL 11892, at *3 (9th

Cir. Jan. 2, 2013). Gonzalez-Castillo’s applicable guideline range before any

variance was his career offender range under U.S.S.G. § 4B1.1. The Sentencing

Commission’s amendments to the Guidelines have not lowered his career offender

range. Gonzalez-Castillo is therefore ineligible for a reduction of sentence.

      Gonzalez-Castillo’s ex post facto, Administrative Procedure Act and other

statutory challenges to § 1B1.10 are waived because they are raised for the first


                                          2
time in his reply brief. See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir.

2012).

         AFFIRMED.




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