United States of America v. Wilmer Alexis Erazo Hernandez, a.k.a. Lacra

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILMER ALEXIS ERAZO HERNANDEZ,
a.k.a. Lacra,
Defendant-Appellant.
No. 16-56805
D.C. Nos. 3:16-cv-02081-DMS
3:12-cr-04965-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Wilmer Alexis Erazo 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
MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 16-56805
Amendment 794 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). A court may not grant
a sentence reduction under section 3582 unless such a reduction would be
consistent with the applicable policy statements issued by the Sentencing
Commission, as reflected in U.S.S.G. § 1B1.10. See 18 U.S.C. § 3582(c)(2);
United States v. Ornelas, 825 F.3d 548, 549-50 (9th Cir. 2016). Section 1B1.10
does not include Amendment 794 in its list of covered amendments. See U.S.S.G.
§ 1B1.10(d). As a result, although we have held that Amendment 794 is
retroactive, see United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir.
2016), the district court properly determined that Amendment 794 cannot serve as
the basis for a sentence reduction under section 3582(c)(2). See U.S.S.G. § 1B1.10
cmt. n.1(A) (“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is
triggered only by an amendment listed in subsection (d).”); Ornelas, 825 F.3d at
550 (court has discretion to lower a sentence if the guideline range has been
lowered as a result of an amendment listed in section 1B1.10(d)).
AFFIRMED.

-- 2 of 2 --