FILED
NOT FOR PUBLICATION JUL 27 2012
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. 08-10361
Plaintiff - Appellee, D.C. No. 2:95-cr-00131-SMM
v.
MEMORANDUM *
EDGAR HUNTER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Edgar Hunter appeals from the district court’s order denying his 18 U.S.C.
§ 3582(c)(2) motion for reduction of sentence. We have jurisdiction under 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).
Hunter contends that the district court abused its discretion by declining to
reduce his sentence based on the retroactive amendments to the Sentencing
Guidelines that lowered the penalties for crack cocaine offenses. Hunter is not
eligible for a sentence reduction because his sentence was based on the parties’
stipulation in a binding plea agreement under Federal Rule of Criminal Procedure
11(c)(1)(C), and not “on a sentencing range that has subsequently been lowered by
the Sentencing Commission,” as required by section 3582(c)(2). See Freeman v.
United States, 131 S. Ct. 2685, 2695-96 (2011) (Sotomayor, J., concurring).
Neither exception that would allow us to conclude otherwise applies here, because
the terms of the plea agreement provide no indication of a particular Guidelines
sentencing range applicable to Hunter’s offenses, nor is any Guidelines range
expressly used in the agreement or evident from the agreement itself. See United
States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012). As such, Hunter’s sentence
was based on the plea agreement, and the district court lacked jurisdiction to
modify his sentence under section 3582(c)(2). See id.
Hunter’s remaining claim is not cognizable under section 3582(c)(2).
AFFIRMED.
2 08-10361