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UNITED STATES OF AMERICA v. DIEGO A. LIGHTFOOT

November 30, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DIEGO A. LIGHTFOOT, AKA JUSIF TAWFIQ,
DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Alaska James K. Singleton, Senior District Judge, Presiding

The opinion of the court was delivered by: Judge Fernandez

FOR PUBLICATION

OPINION

Argued and Submitted November 2, 2010-Seattle, Washington

Before: Betty B. Fletcher, Ferdinand F. Fernandez, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Fernandez

OPINION

FERNANDEZ, Circuit Judge:

Diego Lightfoot appeals the district court's denial of his motion to modify his sentence. 18 U.S.C. § 3582(c)(2). We affirm.

BACKGROUND

Pursuant to a plea agreement signed on November 1, 2004, Lightfoot was convicted on January 13, 2005, of three offenses: felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1); possession of a controlled substance - crack cocaine - with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(B); and use of firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), (D). Based on a total offense level of 23 and a criminal history category of IV, the range under the Sentencing Guidelines ("Guidelines") was established at 130 to 147 months. The district court sentenced Lightfoot to 130 months imprisonment and five years of supervised release.

The Guidelines for crack cocaine violations were amended after Lightfoot was sentenced. Amendment 706 to the Guidelines (hereafter "the Amendment") authorizes reductions for sentences based on crack cocaine violations that were imposed before November 1, 2007. See United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009); USSG App. C, amend. 706. The Sentencing Commission promulgated the Amendment in response to the one hundred to one sentencing disparity between offenses involving crack cocaine and those involving powder cocaine. United States v. Leniear, 574 F.3d 668, 672-73 (9th Cir. 2009). The Amendment reduced the disparity by adjusting the base offense levels assigned to various quantities of crack cocaine downward by two points. USSG § 2D1.1. It was declared to be retroactive. Id. § 1B1.10(c).

In light of the Amendment, Lightfoot filed an 18 U.S.C. § 3582(c)(2) motion with the district court to reduce his sentence. The government asserted that Lightfoot remained a danger to the community and urged the district court to use its discretion to refuse his request.

The court found that Lightfoot was eligible for a sentence reduction under § 3582(c)(2) because "the guideline range applicable to the Defendant has been reduced." The court recognized its obligation to weigh the § 3553(a) factors and to consider the nature and seriousness of the danger to the community that may be posed as a result of any reduction,*fn1 but did not see any reason to hold a ...


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