                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 13 2012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. 11-50135

               Plaintiff - Appellee,              D.C. No. 2:04-cr-00198-TJH

  v.
                                                  MEMORANDUM *
BRIAN DARNELL BERKLEY, Sr.,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Terry J. Hatter, District Judge, Presiding

                              Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Brian Darnell Berkley, Sr., appeals pro se from the district court’s order

denying his 18 U.S.C. § 3582(c)(2) motion to modify his 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).
      Berkley contends that the district court erred by declining to reduce his

sentence based on Guidelines Amendment 599, which addresses the applicability

of weapons enhancements for a defendant convicted of violating 18 U.S.C.

§ 924(c). This contention lacks merit because Amendment 599 went into effect

five years before Berkley was sentenced. Therefore his 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).

      AFFIRMED.




                                          2                                   11-50135
