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UNITED STATES of America, Plaintiff-Appellee, v. Dennis CYRUS, Jr., aka Daddy-O, Defendant-Appellant.
MEMORANDUM **
Dennis Cyrus, Jr., appeals pro se from the district court's orders denying his motion for a sentence reduction under section 404 of the First Step Act and motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
As an initial matter, the government is correct that Cyrus's notice of appeal was untimely as to the district court's order denying his motion for a sentence reduction. See Fed. R. App. P. 4(b); United States v. Lefler, 880 F.2d 233, 234-35 (9th Cir. 1989) (time to appeal is tolled only if motion for reconsideration is timely). However, even assuming Cyrus's appeal were timely as to both of the district court's orders, he is not entitled to relief. Contrary to Cyrus's argument, the district court was not required to reduce his sentence simply because he was eligible for a reduction. See First Step Act § 404(c) (“Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.”); United States v. Kelley, 962 F.3d 470, 472 (9th Cir. 2020). In light of the seriousness of Cyrus's criminal conduct, the court properly exercised its discretion to deny a reduction. See Kelley, 962 F.3d at 472. Moreover, Cyrus is incorrect that his eligibility for a sentence reduction on one of the counts of conviction entitled him to a plenary resentencing on all of the counts of conviction. See id. at 477-78 (the First Step Act, which “plainly indicates that Congress intended to limit courts engaging in resentencing to considering a single changed variable,” does not authorize a plenary resentencing).
AFFIRMED.
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Docket No: No. 20-10240
Decided: June 24, 2021
Court: United States Court of Appeals, Ninth Circuit.
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