FILED
NOT FOR PUBLICATION MAR 26 2010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. 09-30005
Plaintiff - Appellee, D.C. No. 2:07-CR-00055-JLQ
v.
MEMORANDUM *
DANIEL JAMES WHEAT,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Daniel James Wheat appeals pro se 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
AK/Research
The government contends that the plain language of Wheat’s plea agreement
precludes this appeal. Wheat is not appealing the sentence imposed, but rather the
district court’s conclusion that it lacked jurisdiction to modify his sentence.
Therefore we may reach the merits. See United States v. Leniear, 574 F.3d 668,
672 (9th Cir. 2009).
Wheat contends that Amendment 706 to the United States Sentencing
Guidelines, retroactively amending U.S.S.G. § 2D1.1 with respect to offenses
involving crack cocaine, authorizes the district court to resentence him. The
district court did not err by concluding that it lacked jurisdiction pursuant to
§ 3582(c)(2) to modify Wheat’s sentence, as he would have been subject to the
same sentencing range had Amendment 706 been in place at the time he was
sentenced. See U.S.S.G. § 4B1.1 (2007) (providing that the career offender base
offense level applies where it is greater than the applicable base offense level under
§ 2D1.1). Thus, Wheat’s “sentence is not ‘based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,’ as required by
§ 3582(c)(2).” See Leniear, 574 F.3d at 673 (quoting 18 U.S.C. § 3582(c)(2)); see
also United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009).
AFFIRMED.
AK/Research 2 09-30005