                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 16 2012

                                                                        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. 12-30064

               Plaintiff - Appellee,             D.C. No. 3:93-cr-02090-RJB

  v.
                                                 MEMORANDUM *
VINCENT GAMBOA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Vincent Gamboa appeals pro se from the district court’s order denying his

18 U.S.C. § 3582(c)(2) motion for reduction of sentence, and from the district

court’s denial of his motion for reconsideration of that order. 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).
      Gamboa contends that he is eligible for a sentence reduction under

Amendment 750 to the Guidelines, which changed the drug quantity table in

U.S.S.G. § 2D1.1 for offenses involving crack cocaine. Gamboa was sentenced as

a career offender under U.S.S.G. § 4B1.1. He nevertheless maintains that, because

Amendment 750 is ambiguous, the rule of lenity permitted the district court to

reduce his sentence. Even assuming the rule of lenity can be applied to a

Guidelines amendment, this argument fails. Gamboa has not shown that there is

any ambiguity in Amendment 750 or the Fair Sentencing Act, under which the

amendment was promulgated, with respect to their effect on the career offender

provision. See United States v. Bland, 961 F.2d. 123, 128 (9th Cir. 1992) (“The

rule of lenity does not permit us to create an ambiguity where none exists.”).

Because Gamboa’s sentence was not “based on” a Guidelines range that has been

lowered, the district court did not err by denying his motion for reduction of

sentence. See 18 U.S.C. § 3582(c)(2); United States v. Wesson, 583 F.3d 728,

731-32 (9th Cir. 2009).

      AFFIRMED.




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