United States of America v. Aleksandr Malimon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEKSANDR MALIMON,
Defendant-Appellant.
No. 16-30251
D.C. No. 3:10-cr-00396-SI-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted November 8, 2017
Portland, Oregon
Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.
Aleksandr Malimon appeals the district court’s denial of his 18 U.S.C. §
3582(c)(2) motion. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
FILED
NOV 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

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At oral argument, the government conceded that the district court’s
“anticipatory reduction,” granted at Ordonez’s original sentencing in anticipation
of a Guidelines-lowering amendment that had yet to take effect, was not
encompassed in the Guidelines calculation under U.S.S.G. § 1B1.1(a) but was
instead either a variance or departure. It further conceded that under U.S.S.G. §
1B1.10, the “applicable guidelines range” calculation includes only the U.S.S.G. §
1B1.1(a) factors and expressly excludes variances and departures. See U.S.S.G. §
1B1.10 cmt. 1(A). For this reason, Malimon has not been granted a reduction under
18 U.S.C. § 3582(c)(2) and continues to be eligible for a reduction. Malimon
preserved the above argument by raising it in his written motion to modify
sentence. The error was not harmless. See U.S.S.G. § 1B1.10 cmt. 1(B)(iii). We
therefore reverse and remand to the district court to determine whether and to what
extent a reduction in sentence is warranted. On remand, the district court may take
into account, in determining the sentence to be imposed, Malimon’s post-
sentencing conduct. See id.
REVERSED AND REMANDED.
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