                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 01 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10406

              Plaintiff-Appellant,               D.C. No. 1:09-cr-00299-LJO

 v.
                                                 MEMORANDUM*
JESUS LOPEZ,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                           Submitted October 25, 2016**

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

      The government appeals from the district court’s order granting Jesus

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

jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.



      *
        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).
      The government argues that the district court lacked authority to reduce

Lopez’s sentence to 151 months. In light of our recent decision in United States v.

Ornelas, 825 F.3d 548 (9th Cir. 2016), we agree. In determining the “applicable

guidelines range” under U.S.S.G. § 1B1.10, the district court improperly

considered the downward departure that Lopez received at his original sentencing

hearing under section 4A1.3(b). See id. at 554-55. The district court should have

used the amended base offense level of 33 paired with the pre-departure criminal

history category of III, which results in an amended guidelines range of 168 to 210

months. Although Lopez disagrees with the holding in Ornelas, he concedes that it

precludes a reduction of his sentence below 168 months. See U.S.S.G. §

1B1.10(b)(2)(A); Ornelas, 825 F.3d at 555.

      This court has already rejected Lopez’s argument that this application of

U.S.S.G. § 1B1.10(b) violates the Ex Post Facto Clause of the United States

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

see also Ornelas, 825 F.3d at 555 n.9 (noting rejection). Accordingly, we vacate

and remand for resentencing consistent with our decision in Ornelas.

      VACATED and REMANDED for resentencing.




                                         2                                    15-10406
