                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 05 2010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. 09-10320

               Plaintiff - Appellee,             D.C. No. 3:94-cr-00044-ECR

  v.
                                                 MEMORANDUM *
DONALD LEROY HOGAN,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Edward C. Reed, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Donald Leroy Hogan 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.

       Hogan contends that the district court erred by failing to reduce his sentence

          *
             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).
pursuant to Amendment 706 to the United States Sentencing Guidelines, which

lowered the sentencing range for offenses involving crack cocaine. However,

Amendment 706 did not lower the base offense level for crack offenses that equal

or exceed 4.5 kilograms.1 See U.S.S.G. § 2D1.1(c)(1) (2008). Thus, Hogan’s

sentence is not based on a sentencing range that has subsequently been lowered by

the Sentencing Commission, as required by Section 3582(c)(2). See United States

v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). Hogan’s argument that Leniear is

distinguishable because it involved the “grouping” provision of the Guidelines is

without merit. See id.

      Hogan’s argument that application of Leniear improperly delegates authority

from Congress to the Sentencing Commission to define the subject-matter

jurisdiction of the federal courts is also without merit. See 18 U.S.C. § 3582(c)(2)

(conferring jurisdiction upon the district court to modify a term of imprisonment

for a defendant whose sentence was based on a range that has subsequently been

lowered by the Sentencing Commission); see also Dillon v. United States, 130 S.

Ct. 2692 (2010).

      Hogan’s request for a stay is denied.

      AFFIRMED.


      1
          Hogan was responsible for approximately 22 kilograms of crack cocaine.

                                          2                                    09-10320
