FILED
NOT FOR PUBLICATION MAY 21 2013
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. 12-30104
Plaintiff - Appellee, D.C. No. 3:08-cr-05604-RJB
v.
MEMORANDUM *
ANDREW HOUSTON POINTER,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Andrew Houston Pointer 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).
Pointer contends that he is entitled to a sentence reduction based on
retroactive amendments to the Sentencing Guidelines that lowered the penalties for
crack cocaine offenses. We review de novo whether the district court had
jurisdiction to modify a defendant’s sentence under section 3582(c)(2). See United
States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012). Pointer 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 been subsequently 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). Contrary to Pointer’s
contention, no sentencing range is evident from the face of the agreement that
could have formed the basis for the specific term of 108 months. See Austin, 676
F.3d at 930. Accordingly, the district court lacked jurisdiction to modify Pointer’s
sentence under section 3582(c)(2). See id.
AFFIRMED.
2 12-30104