                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 27 2011

                                                                        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. 09-10431

               Plaintiff - Appellee,             D.C. No. 2:95-cr-00258-LDG

  v.
                                                 MEMORANDUM *
ANTHONY MACKLIN,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Anthony Macklin 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).
      Macklin contends that the district court violated his Sixth Amendment right

to due process and U.S.S.G. § 6A1.3, by considering prison disciplinary findings

when denying his 18 U.S.C. § 3582(c)(2) motion because the conduct was

contested and 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”).

      AFFIRMED.




                                          2                                   09-10431
