NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      DEC 19 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 15-10572

                  Plaintiff-Appellee,            D.C. No. 4:08-cr-01370-CKJ

   v.
                                                 MEMORANDUM*
 ALVARO ZEPEDA-TOSCANO,

                  Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                           Submitted December 14, 2016**

Before:       WALLACE, LEAVY, and FISHER, Circuit Judges.

        Alvaro Zepeda-Toscano appeals pro se from the district court’s orders

denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

        Zepeda-Toscano contends that he is entitled to a sentence reduction under

        *
             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).
Amendment 782 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). Assuming without

deciding that Zepeda-Toscano’s Federal Rule of Criminal Procedure 11(c)(1)(C)

plea agreement does not preclude him from a sentence reduction under United

States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), he is nonetheless

ineligible for a sentence reduction under Amendment 782 because his sentence is

already below the minimum of the amended guideline range. See U.S.S.G.

§ 1B1.10(b)(2)(A) (“[T]he court shall not reduce the defendant’s term of

imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that

is less than the minimum of the amended guideline range.”). Accordingly, the

district court did not err by denying Zepeda-Toscano’s motion.

      We reject Zepeda-Toscano’s claim that he received ineffective assistance of

counsel because the Federal Public Defender did not represent him in these

proceedings.

      AFFIRMED.




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