United States v. Joseph Clements

FILED NOT FOR PUBLICATION JAN 26 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 09-10153 Plaintiff - Appellee, D.C. No. 2:98-cr-00402-LDG v. MEMORANDUM * JOSEPH D. CLEMENTS, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Submitted January 11, 2010 ** Before: BEEZER, TROTT, and BYBEE, Circuit Judges. Joseph D. Clements appeals from the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the * 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). EH/Research retroactive application of Amendment 706 to the Sentence Guidelines provisions governing crack cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Clements contends that the district court erred by denying his motion for a sentence reduction under Amendment 706 because his sentence was based, in part, on a sentencing range calculated under the Drug Quantity Table in U.S.S.G. § 2D1.1. This contention fails because Clements qualified as a career offender under U.S.S.G. § 4B1.1. Because the district court sentenced Clements based on a sentencing range calculated under § 4B1.1, he is not eligible for a sentence reduction under Amendment 706. See United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009). AFFIRMED. EH/Research 2 09-10153