FILED
NOT FOR PUBLICATION DEC 17 2009
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. 08-10411
Plaintiff - Appellee, D.C. No. 2:03-cr-00350-LRH
v.
MEMORANDUM *
COURTNEY JONES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Courtney Jones appeals from the district court’s order denying his 18 U.S.C.
§ 3582(c)(2) motion for reduction of sentence. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
SZ/Research
Jones contends that the district court violated his Sixth Amendment right to
due process by considering prison conduct when denying his 18 U.S.C.
§ 3582(c)(2) motion because the conduct was not proven by a preponderance of the
evidence. Assuming that the Government was required to meet this burden, the
record reflects that the burden was met. See generally United States v. Dare, 425
F.3d 634, 642 (9th Cir. 2005) (recognizing that, “[a]s a general rule, the
preponderance of the evidence standard is the appropriate standard for factual
findings used for sentencing”).
Jones also contends that the district court violated U.S.S.G. § 6A1.3, by not
receiving evidence or issuing findings regarding “the dispute” over the prison
violations. Jones never disputed that he possessed the dangerous weapons or any
of the conduct relating to the infractions, so there was no factual dispute to resolve.
Cf. United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir. 2008) (holding that
the district court did not violate Fed. R. Crim. P. 32(i) when it failed to rule on the
reliability of a law enforcement report because the appellant did not contest the
factual accuracy of the report).
Jones’ motion to strike the original reply brief and file a new reply brief is
granted and the new reply brief is deemed filed.
SZ/Research 2 08-10411
AFFIRMED.
SZ/Research 3 08-10411