                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 29 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30048

               Plaintiff - Appellee,             D.C. No. 1:11-cr-00127-SPW

 v.
                                                 MEMORANDUM*
HOWARD JAY BONIFANT,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                              Submitted July 27, 2016**

Before:        PREGERSON, LEAVY, and OWENS, Circuit Judges.

      Howard Jay Bonifant 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, and 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).
      Bonifant contends that the district court erred in holding that it did not have

the authority to reduce his sentence. We review de novo whether a defendant is

eligible for a sentence reduction. See United States v. Leniear, 574 F.3d 668, 672

(9th Cir. 2009). Although the district court misstated Bonifant’s total offense

level, the court was correct that Amendment 782 did not lower Bonifant’s

Guidelines range. Contrary to Bonifant’s argument, his total offense level after the

amendment was 40. See U.S.S.G. § 1B1.10 cmt. n.1(A); United States v. Ornelas,

__F.3d__ (9th Cir. 2016) (holding that the base offense level in a motion for

reduction of sentence under Amendment 782 is determined without taking into

account downward departures); United States v. Pleasant, 704 F.3d 808, 812 (9th

Cir. 2013), overruled on other grounds by United States v. Davis, __F.3d__ (9th

Cir. 2016) (en banc). Because a total offense level of 40 and a criminal history

category of III yields a Guidelines range of 360 months-life, the same range that

applied before Amendment 782, the district court properly held that it lacked

authority to lower Bonifant’s sentence. See 18 U.S.C. § 3582(c)(2); Pleasant, 704

F.3d at 810.

      AFFIRMED.




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