                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 16 2013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. 12-30149

               Plaintiff - Appellee,             D.C. No. 3:04-cr-05350-RBL

  v.
                                                 MEMORANDUM *
LIONEL IRVING, a.k.a., Mo,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                            Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Lionel Irving appeals 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, 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).
      Irving contends that he is entitled to a sentence reduction based on the

retroactive amendments to the Sentencing Guidelines that lowered the penalties for

crack cocaine offenses. We review de novo whether the district court had

jurisdiction to modify a defendant’s sentence under 18 U.S.C. § 3582(c)(2). See

United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009). Irving is not eligible

for a sentence reduction because his sentence was based on the parties’ stipulation

in a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C),

and not “on a sentencing range that has subsequently been lowered by the

Sentencing Commission,” as required by section 3582(c)(2). See Freeman v.

United States, 131 S. Ct. 2685, 2695-96 (2011) (Sotomayor, J., concurring). The

plea agreement does not call for Irving to be sentenced within a particular

Guidelines sentencing range, nor is any such Guidelines range expressly used in

the agreement or evident from the agreement itself. See id. at 2697-98. Therefore,

the district court lacked jurisdiction to modify Irving’s sentence under section

3582(c)(2). See United States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012).

      AFFIRMED.




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