United States v. Galindo

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-1069 D.C. No. Plaintiff - Appellee, 1:04-cr-00053-DAE-1 v. MEMORANDUM* SILVER JOSE GALINDO, AKA Daniel S. Galindo, AKA Timothy Mau, Defendant - Appellant. Appeal from the United States District Court for the District of Hawaiʻi David A. Ezra, District Judge, Presiding Argued and Submitted June 10, 2024 Honolulu, Hawaiʻi Before: CALLAHAN, HURWITZ, and H.A. THOMAS, Circuit Judges. Silver Jose Galindo appeals the district court’s partial denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). We have jurisdiction under 28 U.S.C. § 1291. Reviewing for abuse of discretion, United States v. Chen, 48 F.4th 1092, 1094 (9th Cir. 2022), we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  The district court determined that the disparity between Galindo’s original sentence and the sentence he could have received had he committed the crimes in question after the adoption of the First Step Act (“FSA”), which eliminated the previously mandatory 25-year consecutive “stacking” provision relating to 18 U.S.C. § 924(c) convictions, was an “extraordinary and compelling” reason for a sentence reduction. See 18 U.S.C. § 3582(c)(1)(A)(i). After weighing the 18 U.S.C. § 3553(a) factors, the district court then reduced Galindo’s sentence from 452 months to 380 months. Galindo argues that his reduced sentence “amounts to an upward variance” from the low-end sentence of 230 months he could have received had the FSA been in place at the time he committed the crimes. But because Section 403 of the FSA is not retroactive, the district court could not use a post-FSA Guidelines range as the “anchor” for Galindo’s sentence. See Concepcion v. United States, 597 U.S. 481, 494, 498 n.6 (2022). And because the district court expressly considered the 18 U.S.C. § 3553(a) sentencing factors in imposing the reduced sentence— including the disparity between the original sentence and the Guidelines range now applicable for the same offenses—we must defer to the district court’s decision. United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009). AFFIRMED. 2 23-1069