                                                                           FILED
                           NOT FOR PUBLICATION                             SEP 16 2013

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                      No. 12-30006

             Plaintiff - Appellee,             D.C. No. 3:07-cr-05051-RBL-1
                                               Western District of Washington,
       v.                                      Tacoma

CARLOS M GONZALEZ-CASTILLO,
                                               ORDER
             Defendant - Appellant.


Before: FISHER, GOULD and PAEZ, Circuit Judges.

      The memorandum disposition filed February 7, 2013 is amended. An

amended memorandum disposition will be filed concurrently with this order.

      The petitions for rehearing and rehearing en banc are otherwise

DENIED, and no further petitions for rehearing will be accepted.
                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                          SEP 16 2013

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

UNITED STATES OF AMERICA,                        No. 12-30006

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

       v.
                                                 AMENDED 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.

      The memorandum filed February 7, 2013, is amended below.

      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, 704 F.3d 808, 812 (9th Cir. 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 and statutory challenges to § 1B1.10 are

waived because they are raised for the first time in his reply brief. See United


                                           2
States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012). Even if not waived, see

Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010), Gonzalez-Castillo

has not shown plain error. His ex post facto argument is in conflict with United

States v. Trujillo, 713 F.3d 1003, 1011-12 (9th Cir. 2013), where we agreed with

the government that a defendant “is not entitled to select only the favorable portion

of an amendment to a single Guideline and to disregard the unfavorable portion, so

long as his overall sentence is not increased beyond that originally imposed.” His

statutory authority argument conflicts with the last clause in 18 U.S.C.

§ 3582(c)(2) and 28 U.S.C. § 994(u), each of which grants the Commission

authority to determine who is eligible for a reduction in sentence.

      AFFIRMED.




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