FILED
NOT FOR PUBLICATION FEB 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10249
Plaintiff - Appellee, D.C. No. 2:91-cr-00139-EHC
v.
MEMORANDUM *
GONZALO GOMEZ-MORALES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Gonzalo Gomez-Morales appeals pro se from the district court’s order
denying his 18 U.S.C. § 3582(c)(2) motion for modification of sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gomez contends that Amendment 591 to the United States Sentencing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Guidelines, clarifying the application of U.S.S.G. § 2D1.2, authorizes the district
court to resentence him. The record reflects that Gomez’s base offense level was
calculated under § 2D1.1(c)(1), rather than § 2D1.2; therefore Amendment 591
does not apply to him. Accordingly, Gomez cannot demonstrate that his sentence
is based on a sentencing range that has subsequently been lowered by the
Sentencing Commission, as required by § 3582(c)(2). See United States v.
Leniear, 574 F.3d 668, 673 (9th Cir. 2009).
Gomez also contends that he is entitled to relief under Amendment 591
because the drug quantity used to calculate his base offense level was determined
by the sentencing court, rather than a jury. This argument is foreclosed. See
Dillon v. United States, 130 S. Ct. 2683, 2692 (2010) (proceedings under
§ 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts
found by a jury beyond a reasonable doubt).
AFFIRMED.
2 10-10249