                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 02 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10013

               Plaintiff - Appellee,             D.C. No. 5:09-cr-00135-RMW

  v.
                                                 MEMORANDUM*
MICHAEL DAMAR SHIRLEY,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                           Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       Michael Damar Shirley appeals from the district court’s order denying his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo whether a district court



          *
             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).
has authority to modify a sentence under section 3582, see United States v.

Wesson, 583 F.3d 728, 730 (9th Cir. 2009), and we affirm.

      Shirley contends that he is entitled to a sentence reduction under

Amendment 750 to the Sentencing Guidelines. This contention fails.

Notwithstanding the fact that Shirley was sentenced under a Rule 11(c)(1)(C) plea

agreement that calculated the advisory Sentencing Guidelines range by reference to

U.S.S.G. § 2D1.1, the “applicable” Guidelines range in his case was U.S.S.G.

§ 4B1.1, the Career Offender Guideline. See United States v. Pleasant, 704 F.3d

808, 811-12 (9th Cir.), cert. denied, 134 S. Ct. 824 (2013). Accordingly, the

district court lacked authority to reduce Shirley’s sentence. See id. at 812.

      In light of our decision, we need not reach the government’s contention that

Shirley waived his right to file a section 3582 motion in his plea agreement.

      Shirley’s unopposed motion to file a late reply brief is granted, and the Clerk

shall file the reply brief submitted on July 14, 2014.

      AFFIRMED.




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