United States of America v. Mario Gonzalez, a.k.a. Payaso

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIO GONZALEZ, a.k.a. Payaso,
Defendant-Appellant.
No. 17-10094
D.C. No. 4:13-cr-01844-JGZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Mario Gonzalez appeals from the district court’s order denying his motion
for a sentence reduction under 18 U.S.C. § 3582(c)(2) following remand. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gonzalez contends that the district court erred by rejecting his motion and
FILED
NOV 17 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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the parties’ joint stipulation for a six-month reduction simultaneously. He argues
that, once the court decided to reject the stipulation, it should have allowed him to
submit further briefing before deciding the motion. Even if Gonzalez were correct
that he should have been permitted to withdraw from the stipulation, his claim
fails. Gonzalez cites no authority requiring a district court to allow argument on a
section 3582(c)(2) motion. To the contrary, the district court has broad discretion
to decide how to adjudicate a section 3582(c)(2) proceeding. See United States v.
Mercado-Moreno, 869 F.3d 942, 954 (9th Cir. 2017). Gonzalez’s reliance on cases
involving the right to allocute at sentencing is misplaced because a section
3582(c)(2) proceeding is not a plenary resentencing. See Dillon v. United
States, 560 U.S. 817, 825-26, 830 (2010).
We also reject Gonzalez’s contention that the district court erred by denying
as moot his motion for appointment of counsel. Gonzalez had no Sixth
Amendment right to counsel when bringing his section 3582 motion. See United
States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996). Nevertheless, he was
appointed counsel under former Arizona District Court General Order 15-13, and
that counsel joined in the stipulation. Gonzalez points to no authority to show that
the court was required, by due process or otherwise, to appoint him new counsel on
remand.
AFFIRMED.
17-10094 2

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