                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 17 2009

                                                                        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. 08-50434

              Plaintiff - Appellee,              D.C. No. 5:01-cr-0011-VAP-1

  v.
                                                 MEMORANDUM *
ANDRE PATRICK HOLLAND,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                      Argued and Submitted November 6, 2009
                               Pasadena, California

Before: SCHROEDER and IKUTA, Circuit Judges, and SEDWICK, ** District
Judge.

       The district court did not err in denying Holland’s request to apply the

“safety valve” in 18 U.S.C. § 3553(f) on a motion for reduction of sentence under

18 U.S.C. § 3582(c)(2), because modification of a sentence under § 3582(c)(2)

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
“does not amount to a new sentencing for purposes of the safety valve statute.”

United States v. Stockdale, 129 F.3d 1066, 1068 (9th Cir. 1997). Moreover,

Sentencing Commission policy statements prevent use of § 3553(f) in § 3582(c)

proceedings. See U.S.S.G. §§ 1B1.10(a)(3), 1B1.10(b)(1). “[C]onsistency with

the policy statements is a mandatory condition” under § 3582(c)(2). United States

v. Sipai, 582 F.3d 994, 995 (9th Cir. 2009).

      AFFIRMED.




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