UNITED STATES of America, Plaintiff-Appellee, v. Ricardo CRUZAGOSTO, Defendant-Appellant, 530 F. App'x 658

MEMORANDUM Ricardo Cruzagosto appeals from the district court’s order denying his motion under 18 U.S.C. § 3582(c)(2) for reduction of sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Cruzagosto contends that he is entitled to a sentence reduction under Amendments 748 and 750 to the Sentencing Guidelines. We review de novo. United States v. Leniear, 574 F.3d 668, 672 (9th Cir.2009). The district court correctly determined that it was without authority to reduce Cruzagosto’s 168-month sentence, as that sentence was at the bottom of the amended advisory Sentencing Guidelines range.

See 18 U.S.C. § 3582(c)(2) (permitting reduction of sentence only where “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission”); U.S.S.G. § lB1.10(b)(2)(A) (“the 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”). Cruzagosto nonetheless argues that the district court should have treated his four-level variance as a “guideline application decision[ ]” entitled to consideration under U.S.S.G. § lB1.10(b)(l).

The language of and commentary to

section lB1.10(b)(2)(

A) squarely foreclose his position. See U.S.S.G. § lB1.10(b)(2)(A) & cmt. n. 3 (subsection (b)(2)(

A) applies even where the district court imposed a downward variance at sentencing). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.