U.S. Court of Appeals for the Ninth Circuit, 2011

United States v. Gonzalo Gomez-Morales

United States v. Gonzalo Gomez-Morales
U.S. Court of Appeals for the Ninth Circuit · Decided February 28, 2011 · Canby, Fernandez, Smith
416 F. App'x 656

United States v. Gonzalo Gomez-Morales

Opinion

MEMORANDUM **

Gonzalo Gomez-Morales appeals pro se from the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion for modification of sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gomez contends that Amendment 591 to the United States Sentencing Guidelines, clarifying the application of U.S.S.G. § 2D1.2, authorizes the district court to resentenee him. The record reflects that Gomez’s base offense level was calculated under § 2Dl.l(c)(l), rather than § 2D1.2; therefore Amendment 591 does not apply to him. Accordingly, Gomez cannot demonstrate that his sentence is based on a sentencing range that has subsequently been lowered by the Sentencing Commission, as required by § 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009).

Gomez also contends that he is entitled to relief under Amendment 591 because the drug quantity used to calculate his base offense level was determined by the sentencing court, rather than a jury. This argument is foreclosed. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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