621 F. App'x 552

UNITED STATES of America, Plaintiff-Appellee, v. Marcos Antonio AVALOS-CHAVEZ, Defendant-Appellant.

No. 15-4111.

United States Court of Appeals, Tenth Circuit.

Nov. 3, 2015.

Tyler Murray, Vernon G. Stejskal, Office of the United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Marcos Antonio Avalos-Chavez, Post, TX, pro se.

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

ORDER AND JUDGMENT *

NEIL M. GORSUCH, Circuit Judge.

After his conviction for federal drug charges, the district court turned to the question of an appropriate sentence for Mr. Avalos-Chavez. It began by calculating the advisory guidelines range. In doing so, the court took into account — and gave Mr. Avalos-Chavez the benefit of— an anticipated amendment to the guidelines that was not yet technically effective. The resulting advisory guidelines suggested a sentence of between 70 and 87 months. But the district court thought this much too much and ultimately imposed a 48-month sentence. Now the amendment is effective and Mr. Avalos-Chavez seeks to reopen his sentencing hearing. The district court refused this request, emphasizing that it had already given him everything the amendment might. Even so, Mr. Avalos-Chavez appeals.

We see no grounds for reversal. Mr. Avalos-Chavez is of course correct that 18 U.S.C. § 3582(c)(2) empowers a district court to modify a defendant’s sentence if it was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” And Mr. Avalos-Chavez is also right that his advisory sen-*553fencing range has now been lowered by the Commission. But he fails to account for the fact that § 3582(c)(2) also states that a district court may reduce a defendant’s sentence only “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” And the relevant policy statement here, U.S. Sentencing Guidelines Manual § lB1.10(b)(2)(A)-(B), expressly provides (with one exception not relevant here) that a court “shall not” reduce a defendant’s sentence below the amended advisory guidelines range. Because the district court anticipated the amended advisory guidelines range at his original sentencing - hearing, because that range suggested a sentence of at least 70 months, and because Mr. Avalos-Chavez received a sentence well below that, the district court properly recognized that he was entitled to no further relief.

Affirmed.

United States v. Avalos-Chavez
621 F. App'x 552

Case Details

Name
United States v. Avalos-Chavez
Decision Date
Nov 3, 2015
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621 F. App'x 552

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United States

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