UNITED STATES of America, Plaintiff-Appellee, v. Aleksandr MALIMON, Defendant-Appellant, 702 F. App'x 612

MEMORANDUM Aleksandr Malimon appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion. We have jurisdiction under 28 U.S.C. § 1291, and we reverse. At oral argument, the government conceded that the district court’s “anticipatory reduction,” granted at Ordonez’s original sentencing in anticipation of a Guidelines-lowering amendment that had yet to take effect, was not encompassed in the Guidelines calculation under U.S.S.G. § lBl.l(

a) but was instead either a variance or departure. It further conceded that under U.S.S.G. § 1B1.10, the “applicable guidelines range” calculation includes only the U.S.S.G. § lBl.l(

a) factors and expressly excludes variances and departures. See U.S.S.G. § 1B1.10 cmt. 1(A). For this reason, Malimon has not been granted a reduction under 18 U.S.C. § 3582(c)(2) and continues to be eligible for a reduction. Malimon preserved the above argument by raising it in his written motion to modify sentence. The error was not harmless. See U.S.S.G. § 1B1.10 cmt. l(B)(iii). We therefore reverse and remand to the district court to determine whether and to what extent a reduction in sentence is warranted.

On remand, the district court may take into account, in determining the sentence to be imposed, Malimon’s post-sentencing conduct. See id. REVERSED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.