                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 13 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-30264

              Plaintiff-Appellee,                D.C. No.
                                                 4:10-cr-00014-RRB-1
 v.

MICHAEL LEE DUNSHIE,                             MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Ralph R. Beistline, District Judge, Presiding

                          Submitted December 8, 2017**
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

      Defendant-Appellant Michael Dunshie appeals an order denying his motion

for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under




      *
             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).
28 U.S.C. § 1291, and we review de novo. United States v. Spears, 824 F.3d 908,

912 (9th Cir. 2016). We affirm.

      The district court did not have jurisdiction to grant Dunshie’s motion.

Because Dunshie was sentenced after the district court accepted the parties’ Rule

11(c)(1)(C) plea agreement, he is not eligible for relief under § 3582(c)(2) unless

“the district court’s ‘decision to accept the plea and impose the recommended

sentence’ was ‘based on the [U.S. Sentencing] Guidelines.’” United States v.

Davis, 825 F.3d 1014, 1027 (9th Cir. 2016) (en banc) (quoting Freeman v. United

States, 564 U.S. 522, 534 (2011) (plurality opinion)).

       The record illustrates that the district court accepted the parties’ plea

agreement for reasons unrelated to the Guidelines. Although the district court

briefly acknowledged the Guidelines at sentencing and permitted the parties to

make Guidelines-based arguments, the Guidelines did not influence the sentence.

See id. at 1023 n.9. In fact, at one point, the district court remarked “none of this

really matters.” Instead, the district court repeatedly emphasized that the sentence

was a function of the plea agreement, which allowed Dunshie to avoid serious

mandatory prison time for uncharged offenses. In exchange for Dunshie’s plea, the

government agreed not to prosecute Dunshie for firearms offenses including a

violation of 18 U.S.C. § 924(c), which carries a mandatory five-year sentence


                                           2
enhancement. The government also agreed not to file an information under 21

U.S.C. § 851 regarding Dunshie’s two prior felony drug convictions, which

threatened a mandatory minimum of ten years and the potential for a life sentence.

See 21 U.S.C. § 841(b)(1)(B). The looming specter of those penalties led the

district court to conclude that “the plea agreement [was] a good one for [Dunshie],”

even though the agreement recommended a sentence (10 years) that was

significantly higher than the upper end of the Guidelines range for Dunshie’s

offense of conviction (71 months). In short, the record reveals that the Guidelines

did not inform the district court’s decision to accept the plea agreement and impose

the recommended sentence.

      AFFIRMED.




                                          3
