United States v. Romo

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-321 D.C. No. Plaintiff - Appellee, 1:13-cr-00113-SPW-1 District of Montana, Billings v. MEMORANDUM* FELIS LUSIANO ROMO, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Argued and Submitted December 4, 2023 Portland, Oregon Before: BERZON, NGUYEN, and MILLER, Circuit Judges. Felis Lusiano Romo appeals the district court’s denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). We have jurisdiction under 28 U.S.C. § 1291. Reviewing for abuse of discretion, see United States v. Roper, 72 F.4th 1097, 1100 (9th Cir. 2023), we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Romo contends that the district court failed to comply with 18 U.S.C. § 3553(a) because “the sentence he is currently serving would constitute an upward departure from the applicable guideline range” based on his current criminal history and the court “did not articulate a reason” for the deviation. The district court acknowledged that “the changes in his criminal history . . . could have impacted his sentencing advisory guidelines range.” It then explained that the § 3553(a) factors would not be served by a lower sentence due to the seriousness of Romo’s heavy involvement in a violent and wide-reaching drug conspiracy and the fact that his sentence had already been reduced pursuant to an amendment to the sentencing guidelines. These observations were sufficiently responsive to Romo’s argument that the court should consider in its § 3553(a) analysis that his guidelines range would be lower if he had been sentenced at the time of the motion. The district court “adequately ‘considered [Romo’s] motion and had a reasoned basis for exercising [its] legal decisionmaking authority,’” which “is all that the law requires.” United States v. Wright, 46 F.4th 938, 952–53 (9th Cir. 2022) (cleaned up) (quoting Chavez-Meza v. United States, 138 S. Ct. 1959, 1967 (2018)). To the extent the court concluded, contrary to Roper, that changes in state law cannot serve as an “extraordinary and compelling” reason for a sentence reduction, 18 U.S.C. § 3582(c)(1)(A)(i), any such error was harmless. See Wright, 46 F.4th at 947–48. 2 23-321 AFFIRMED. 3 23-321