                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 10 2009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. 08-10452

              Plaintiff - Appellee,              D.C. No. 3:89-cr-00602-MHP

  v.
                                                 MEMORANDUM *
JAMES L. BEASLEY, Jr.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                     Marilyn H. Patel, District Judge, Presiding

                            Submitted December 7, 2009 **
                              San Francisco, California

Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.

       Appellant James Beasley challenges the district court’s denial of his motion

to reduce his sentence pursuant to 18 U.S.C. § 3582, and the district court’s denial

of his petition for a writ of audita querela.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      The district court sentenced Beasley for conspiracy to distribute fifty

kilograms or more of cocaine powder, not cocaine base, see U.S.S.G. §

2D1.1(c)(1) (Nov. 1, 1987). Beasley was not indicted for conspiracy to distribute

cocaine base, and the presentence report does not mention cocaine base.

Therefore, Beasley’s sentence was not “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” United States v.

Wesson, 583 F.3d 728, 730 (9th Cir. 2009) (citation omitted); see also 18 U.S.C. §

3582(c)(2). The district court, therefore, properly denied Beasley’s motion to

reduce his sentence pursuant to 18 U.S.C. § 3582.1

      For this same reason, the district court also properly denied Beasley’s

petition for a writ of audita querela. See Carrington v. United States, 503 F.3d

888, 890 n.2 (9th Cir. 2007).

      AFFIRMED.




      1
        Because Beasley was not entitled to resentencing, the district court was not
required to apply Apprendi v. New Jersey, 530 U.S. 466 (2000), to Beasley’s
sentence. See Wesson, 583 F.3d at 730; see also United States v. Sanchez-
Cervantes, 282 F.3d 664, 673 (9th Cir. 2002), as amended (holding that Apprendi
does not apply retroactively).

                                          2
