UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee DUNSHIE, Defendant-Appellant, 706 F. App'x 398

MEMORANDUM Defendant-Appellant Michael Dunshie appeals an order 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 review de novo. United States v. Spears, 824 F.3d 908, 912 (9th Cir. 2016). We affirm. The district court did not have jurisdiction to grant Dunshie’s motion. Because Dunshie was sentenced after the district court accepted the parties’ Rule 11(c)(1)(

C) plea agreement, he is not eligible for relief under § 3582(c)(2) unless “the district court’s ‘decision to accept the plea and impose the recommended sentence’ was ‘based on the [U.S. Sentencing] Guidelines.’” United States v. Davis, 825 F.3d 1014, 1027 (9th Cir. 2016) (en banc) (quoting Freeman v. United States, 564 U.S. 522, 534, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (plurality opinion)). The record illustrates that the district court accepted the parties’ plea agreement for reasons unrelated to the Guidelines.

Although the district court briefly, acknowledged the Guidelines at sentencing and permitted the parties to make Guidelines-based arguments, the Guidelines did not influence the sentence. See id. at 1023 n.9. In fact, at one point, the district court remarked “none of this really matters.” Instead, the district court repeatedly emphasized that the sentence was a function of the plea agreement, which allowed Dun-shie to avoid serious mandatory prison time for uncharged offenses.

In exchange for Dunshie’s plea, the government agreed not to prosecute Dunshie for firearms offenses including a violation of 18 U.S.C. § 924(c), which carries a mandatory five-year sentence enhancement. The government also agreed not to file an information under 21 U.S.C. § 851 regarding Dunshie’s two prior felony drug convictions, which threatened a mandatory minimum of ten years and the potential for a life sentence. See 21 U.S.C. § 841(b)(1)(B).

The looming specter of those penalties led the district court to conclude that “the plea agreement [was] a good one for [Dunshie],” even though the agreement recommended a sentence (10 years) that was significantly higher than the upper end of the Guidelines range for Dunshie’s offense of conviction (71 months). In short, the record reveals that the Guidelines did not inform the district court’s decision to accept the plea agreement and impose the recommended sentence. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.