UNITED STATES v. MALDONADO (2019)

MEMORANDUM **

Amado Maldonado appeals pro se from the district court's order denying his motions for a sentence reduction under 18 U.S.C. § 3582(c)(2) and for relief under Federal Rule of Civil Procedure 60(b). We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

Maldonado first contends that the district court erred by denying his motion for a sentence reduction under Amendment 794 to the Sentencing Guidelines. We review de novo whether a district court had authority to modify a sentence under section 3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). The district court correctly determined that Maldonado is ineligible for a sentence reduction because Amendment 794 is not a covered amendment under U.S.S.G. § 1B1.10(d). See U.S.S.G. § 1B1.10 cmt. n.1(A) (“Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (d).”); United States v. Ornelas, 825 F.3d 548, 550 & n.3 (9th Cir. 2016). We do not reach Maldonado's contentions regarding the district court's alleged errors in calculating the Guidelines range at resentencing because these arguments are not cognizable in a section 3582(c)(2) proceeding. See Dillon v. United States, 560 U.S. 817, 825-26, 831, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (alleged errors unrelated to an amendment that lowers the defendant's guideline range are outside the scope of a section 3582(c)(2) proceeding).

Maldonado next contends that the district court erred by denying his Rule 60(b) motion. The district court properly construed Maldonado's purported Rule 60(b) motion as a disguised motion for post-conviction relief under 28 U.S.C. § 2255. See United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011). Accordingly, Maldonado requires a certificate of appealability (“COA”) to proceed with this portion of his appeal. See 28 U.S.C. § 2253(c)(1)(B); Muth v. Fondren, 676 F.3d 815, 822 (9th Cir. 2012). We treat Maldonado's briefing as a request for a COA. See 9th Cir. R. 22-1(e). So treated, the motion is denied because Maldonado has not made a “substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We, therefore, dismiss Maldonado's appeal of the district court's denial of his purported Rule 60(b) motion. See Muth, 676 F.3d at 823.

AFFIRMED in part; DISMISSED in part.