The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 22, 2010.
Michael Scott Lowe, Michael J. Raphael, Esquire, Daniel Benjamin Levin, Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
Gail Ivens, Esquire, Deputy Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Ronald S.W. Lew, District Judge, Presiding. D.C. No. 2:95-cr-00345-RSWL.
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Mendez first contends that the district court erred in concluding that Mendez is ineligible for a sentence reduction under section 3582(c)(2). This contention is foreclosed by United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009) (holding that a defendant is not eligible for a sentence reduction under section 3582(c)(2) when the application of that amendment does not result in a lower sentencing range). Here, the district court appropriately found at sentencing that Mendez was responsible for the distribution of 139 kilograms of crack cocaine. This finding of fact maintained Mendez's base offense level at 38, which did not lower his sentencing range. See Leniear, 574 F.3d at 673-74.
Mendez also contends that the district court procedurally erred in imposing his sentence by failing to address his mitigating argument and to adequately explain the reasons for declining to impose a lower sentence. He further contends that his guideline sentence is substantively unreasonable in light of his limited involvement in the conspiracy. Mendez's arguments are foreclosed by Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 2690-94, 177 L.Ed.2d 271 (2010) (holding that Bookers holdings do not apply to section 3582(c)(2) proceedings and therefore do not require treating section 1B1.10(b) as advisory).