                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          OCT 04 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 09-10520

               Plaintiff - Appellee,             D.C. No. 5:00-cr-20273-JW

  v.
                                                 MEMORANDUM *
EFREN SANTIVANZ GOMEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Federal prisoner Efren Santivaz Gomez appeals pro se from the district

court’s denial of his motion to reduce his 140-month sentence pursuant to 18

U.S.C. § 3582(c)(2). 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).
      Gomez contends that the district court erred by failing to reduce his sentence

based on Amendment 709 of the United States Sentencing Guidelines. The district

court did not err because the sentence was not based on a sentencing range that has

since been lowered by the Sentencing Commission. See United States v. Paulk,

569 F.3d 1094, 1095 (9th Cir. 2009) (per curiam). Moreover, Amendment 709 to

U.S.S.G. § 4A1.2(c)(1) would not affect the assignment of criminal history points

to Gomez’s prior offenses. See U.S.S.G. § 4A1.2(c).

      AFFIRMED.




                                         2                                    09-10520
