United States v. Herman Rael

Court of Appeals for the Ninth Circuit · 16-50133 · 2017-04-24 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Herman William RAEL, Defendant-Appellant

Area: other
Panel: Gould (author), Richard R. Clifton, Andrew D. Hurwitz

Analysis

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Opinion

FILED NOT FOR PUBLICATION APR 24 2017

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50133 Plaintiff-Appellee, D.C. No. 3:05-cr-01972-H v. MEMORANDUM* HERMAN WILLIAM RAEL, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Submitted April 11, 2017** Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.

Herman William Rael 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 * 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). jurisdiction under 28 U.S.C. § 1291, and we affirm.

Rael contends that he is entitled to a sentence reduction under Amendment 782 to the Sentencing Guidelines. We review de novo whether a district court has authority to modify a sentence under section 3582(c)(2). See United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009). Rael was sentenced as a career offender under U.S.S.G. § 4B1.1. Thus, his sentence was not “based on” a Guideline that was lowered by Amendment 782. See 18 U.S.C. § 3582(c)(2);

Wesson, 583 F.3d at 731. Further, insofar as Rael contends that the district court erred when it determined that he was a career offender, this claim is not cognizable in a section 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817, 831 (2010) (alleged sentencing errors are “outside the scope of the proceeding authorized by § 3582(c)(2)”).

AFFIRMED.

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