                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 09 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-10611

               Plaintiff - Appellee,              D.C. No. 2:97-cr-00026-GEB

  v.
                                                  MEMORANDUM*
RICO DURAN MAYO,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Rico Duran Mayo 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

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). Accordingly, Mayo’s request
for oral argument is denied.
      Mayo contends that he is entitled to a sentence reduction under the Fair

Sentencing Act of 2010 (“FSA”) and subsequent amendments to the Sentencing

Guidelines. He argues that because his conviction under 21 U.S.C. § 844 no longer

qualifies as a predicate crime for one of his two convictions under 18 U.S.C.

§ 924(c), the district court had discretion to dismiss his first section 924(c)

conviction and to modify the sentence imposed for his second section 924(c)

conviction. We review de novo whether the district court had authority to modify

a defendant’s sentence under section 3582(c)(2). See United States v. Austin, 676

F.3d 924, 926 (9th Cir. 2012).

      Mayo is not entitled to relief under section 3582(c)(2) because section

3582(c)(2) does not authorize a plenary resentencing proceeding, but only a limited

adjustment to an otherwise final sentence when the Guidelines range applicable to

a defendant’s sentence has subsequently been lowered. See 18 U.S.C.

§ 3582(c)(2); Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). Mayo was

sentenced in 1998 to the statutory mandatory minimum sentence, and not based on

a Guidelines range that was subsequently lowered. Further, any changes made by

the FSA do not apply retroactively to defendants, like Mayo, who were sentenced

before its effective date. See United States v. Augustine, 712 F.3d 1290, 1295 (9th

Cir. 2013).

      All pending motions are denied.

      AFFIRMED.

                                            2                                     12-10611
