United States of America v. Marcus Gallien, a.k.a. Baby Scrooge, a.k.a. Scrooge

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS GALLIEN, a.k.a. Baby
Scrooge, a.k.a. Scrooge,
Defendant - Appellant.
No. 12-50141
D.C. No. 2:08-cr-00381-VBF
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Marcus Gallien appeals pro se from the district court’s order denying his 18
U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
FILED
MAY 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

12-50141 2
Gallien contends that he is eligible for a sentence reduction because his
sentence was based on a sentencing range calculated under U.S.S.G. § 2D1.1, and
that range was subsequently lowered by the Sentencing Commission through
Amendment 750 to the Guidelines. Gallien acknowledges that the court initially
calculated his sentencing range under U.S.S.G. § 4B1.1, the career offender
Guideline, but contends that it varied downward to the section 2D1.1 sentencing
range, thus entitling him to relief under section 3582(c)(2). We review de novo
whether the district court had jurisdiction to modify a sentence under section
3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009).
The record does not support Gallien’s assertion that the district court
calculated a new sentencing range under section 2D1.1 when it varied below the
career offender Guideline range. Moreover, even if Gallien were correct, a
reduction in his sentence would not be consistent with U.S.S.G. § 1B1.10, which
establishes that the applicable Guidelines range is the pre-variance Guidelines
range. See U.S.S.G. § 1B1.10 cmt. n.1(A) (2011); United States v. Pleasant, 704
F.3d 808, 812 (9th Cir. 2013). Accordingly, the district court lacked jurisdiction to
lower Gallien’s sentence. See 18 U.S.C. § 3582(c)(2); Pleasant, 704 F.3d at 812.
AFFIRMED.

-- 2 of 2 --