                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2013

                                                                        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. 12-30086

               Plaintiff - Appellee,             D.C. No. 3:04-cr-00003-JWS

  v.
                                                 MEMORANDUM *
JOSEF FRANZ BOEHM,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Josef Franz Boehm 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).
      Boehm contends that the district court erred by denying his motion to reduce

his sentence under the retroactive amendments to the Sentencing Guidelines for

crack cocaine offenses. He argues that his sentence is longer than necessary in

light of the 18 U.S.C. § 3553(a) sentencing factors. We review a district court’s

decision to deny a section 3582(c)(2) motion for abuse of discretion. See United

States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009). We review de novo

whether the district court had jurisdiction to modify a sentence under section

3582(c)(2). See United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012).

      The government contends that the district court lacked jurisdiction to

consider Boehm’s motion because his sentence was based on a plea agreement

entered into under Federal Rule of Criminal Procedure 11(c)(1)(C), rather than on

a Guidelines range that has been lowered. Even assuming that the plea agreement

was entered into under Rule 11(c)(1)(C), however, the district court had

jurisdiction to consider Boehm’s motion because the agreement used as the

stipulated sentencing range a Guidelines range that has been lowered. See

Freeman v. United States, 131 S. Ct. 2685, 2699-700 (2011) (Sotomayor, J.,

concurring).

      Nevertheless, the district court did not abuse its discretion by denying

Boehm’s motion in light of the section 3353(a) sentencing factors, particularly the


                                          2                                      12-30086
nature of Boehm’s offense conduct and the danger he poses to the public. See 18

U.S.C. §§ 3553(a), 3582(c)(2).

      AFFIRMED.




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