United States v. Castillo-Pena

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-4257 D.C. No. Plaintiff - Appellee, 2:20-cr-00590-RGK-1 v. MEMORANDUM* CESAR CASTILLO-PENA, Defendant - Appellant. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Submitted August 15, 2025** Pasadena, California Before: NGUYEN, FORREST, and VANDYKE, Circuit Judges. Cesar Castillo-Pena appeals the district court’s denial of his motion for a sentence reduction under a retroactive amendment to the U.S. Sentencing Guidelines. See 18 U.S.C. § 3582(c)(2); U.S. Sent’g Guidelines Manual * 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). (“U.S.S.G.”) § 4C1.1(a) (U.S. Sent’g Comm’n 2021). Reviewing his preserved claim for abuse of discretion, see United States v. Lizarraras-Chacon, 14 F.4th 961, 964–65 (9th Cir. 2021), and his unpreserved claims for plain error, see United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc), we affirm. 1. The district court did not plainly err by finding that Castillo-Pena failed to show that he “did not possess . . . a firearm . . . in connection with the offense.” U.S.S.G. § 4C1.1(a)(7). As part of the factual basis for his plea, Castillo-Pena agreed that he possessed the firearm “as part of the planned transaction.” Even if, as he argued to the district court, his possession was “consistent with self-defense,” his possession was still “in connection with” the drug exchange regardless of whether he possessed the gun for self-defense in other situations. See United States v. Ferryman, 444 F.3d 1183, 1186 (9th Cir. 2006). 2. The district court’s failure to address Castillo-Pena’s Second Amendment argument was harmless. Assuming that his conduct falls within the plain text of the Second Amendment, there is “a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence,” and “drug trafficking plainly poses substantial risks of confrontation that can lead to immediate violence.” United States v. Alaniz, 69 F.4th 1124, 1129–30 (9th Cir. 2023). The Guidelines’ increased sentencing exposure for possessing a 2 24-4257 firearm in connection with a drug offense does not violate the Second Amendment. See id. 3. U.S.S.G. § 4C1.1(a)(7) does not plainly violate the Ex Post Facto Clause. A retrospective decrease in the Guidelines range “poses no Ex Post Facto concerns,” United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021), because there is “no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments,” Dillon v. United States, 560 U.S. 817, 828 (2010). AFFIRMED. 3 24-4257