                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 17 2009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. 08-10411

               Plaintiff - Appellee,             D.C. No. 2:03-cr-00350-LRH

   v.
                                                 MEMORANDUM *
 COURTNEY JONES,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Nevada
                      Larry R. Hicks, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Courtney Jones appeals from the district court’s order denying his 18 U.S.C.

§ 3582(c)(2) motion for reduction of sentence. We have jurisdiction pursuant to 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

SZ/Research
       Jones contends that the district court violated his Sixth Amendment right to

due process by considering prison conduct when denying his 18 U.S.C.

§ 3582(c)(2) motion because the conduct was not proven by a preponderance of the

evidence. Assuming that the Government was required to meet this burden, the

record reflects that the burden was met. See generally United States v. Dare, 425

F.3d 634, 642 (9th Cir. 2005) (recognizing that, “[a]s a general rule, the

preponderance of the evidence standard is the appropriate standard for factual

findings used for sentencing”).

       Jones also contends that the district court violated U.S.S.G. § 6A1.3, by not

receiving evidence or issuing findings regarding “the dispute” over the prison

violations. Jones never disputed that he possessed the dangerous weapons or any

of the conduct relating to the infractions, so there was no factual dispute to resolve.

Cf. United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir. 2008) (holding that

the district court did not violate Fed. R. Crim. P. 32(i) when it failed to rule on the

reliability of a law enforcement report because the appellant did not contest the

factual accuracy of the report).

       Jones’ motion to strike the original reply brief and file a new reply brief is

granted and the new reply brief is deemed filed.



SZ/Research                                 2                                    08-10411
       AFFIRMED.




SZ/Research        3   08-10411
