                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 26 2010

                                                                        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. 09-30005

               Plaintiff - Appellee,             D.C. No. 2:07-CR-00055-JLQ

   v.
                                                 MEMORANDUM *
 DANIEL JAMES WHEAT,

               Defendant - Appellant.



                     Appeal from the United States District Court
                         for the Eastern District of Washington
                   Justin L. Quackenbush, District Judge, Presiding

                              Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Daniel James Wheat 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

pursuant to 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).

AK/Research
       The government contends that the plain language of Wheat’s plea agreement

precludes this appeal. Wheat is not appealing the sentence imposed, but rather the

district court’s conclusion that it lacked jurisdiction to modify his sentence.

Therefore we may reach the merits. See United States v. Leniear, 574 F.3d 668,

672 (9th Cir. 2009).

        Wheat contends that Amendment 706 to the United States Sentencing

Guidelines, retroactively amending U.S.S.G. § 2D1.1 with respect to offenses

involving crack cocaine, authorizes the district court to resentence him. The

district court did not err by concluding that it lacked jurisdiction pursuant to

§ 3582(c)(2) to modify Wheat’s sentence, as he would have been subject to the

same sentencing range had Amendment 706 been in place at the time he was

sentenced. See U.S.S.G. § 4B1.1 (2007) (providing that the career offender base

offense level applies where it is greater than the applicable base offense level under

§ 2D1.1). Thus, Wheat’s “sentence is not ‘based on a sentencing range that has

subsequently been lowered by the Sentencing Commission,’ as required by

§ 3582(c)(2).” See Leniear, 574 F.3d at 673 (quoting 18 U.S.C. § 3582(c)(2)); see

also United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009).

AFFIRMED.




AK/Research                                2                                       09-30005
