                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 01 2013

                                                                        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. 12-10300

               Plaintiff - Appellee,             D.C. No. 1:98-cr-05022-LJO

  v.
                                                 MEMORANDUM *
WILSON THOMAS, a.k.a. Michael Deon
Thomas,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Wilson Thomas appeals pro se 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. We review de novo whether the district court had authority to


          *
             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).
modify a defendant’s sentence under section 3582(c)(2), see United States v.

Austin, 676 F.3d 924, 926 (9th Cir. 2012), and we affirm.

      Thomas contends that he is entitled to a sentence reduction based on the Fair

Sentencing Act of 2010 (“FSA”) and subsequent amendments to the Sentencing

Guidelines. The government argues that Thomas’s motion is barred by the law of

the case. Because the government did not argue law of the case in the district

court, that argument is waived. See United States v. Trujillo, 713 F.3d 1003, 1007-

08 (9th Cir. 2013). Nevertheless, the district court properly denied Thomas’s

motion.

      Thomas was sentenced to 120 months, the statutory mandatory minimum at

the time of his sentencing. See 21 U.S.C. § 841(b)(1)(A) (1999). Although

Thomas correctly observes that he would be subject to a lower statutory minimum

were he sentenced today, the FSA does not apply to defendants sentenced before

its effective date. See United States v. Augustine, 712 F.3d 1290, 1295 (9th Cir.

2013). Accordingly, Thomas is not entitled to relief under section 3582(c)(2).

      AFFIRMED.




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