United States of America v. Lino Hernandez, a.k.a. Ramon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LINO HERNANDEZ, a.k.a. Ramon,
Defendant-Appellant.
No. 17-10518
D.C. No. 2:02-cr-00213-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Lino Hernandez appeals pro se 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.
Hernandez contends that he is eligible for a sentence reduction 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).
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-10518
Amendment 782 to the Sentencing Guidelines. We review de novo whether a
district court had authority to modify a sentence under section 3582(c)(2). See
United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Hernandez was
convicted of offenses involving substances that corresponded to approximately 34
kilograms of methamphetamine. Even after Amendment 782, the base offense
level for that drug amount is 38. See U.S.S.G. § 2D1.1(c)(1) (2014). Because
Amendment 782 did not lower Hernandez’s applicable guideline range, the district
court correctly concluded that he is ineligible for a sentence reduction. See 18
U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B); Leniear, 574 F.3d at 673.
Contrary to Hernandez’s contention, once the district court determined his
ineligibility, it was not required to consider the sentencing factors under 18 U.S.C.
§ 3553(a) before denying his section 3582(c)(2) motion. See Dillon v. United
States, 560 U.S. 817, 826 (2010) (the court must determine that a sentence
reduction is authorized under section 3582(c)(2) before it may consider whether a
reduction is warranted under the section 3553(a) factors).
Hernandez’s remaining claims are not cognizable in a section 3582(c)(2)
proceeding. See id. at 831.
AFFIRMED.

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