                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 10 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10507

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00890-MMC-2

  v.
                                                 MEMORANDUM*
JAY KENT,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding

                           Submitted October 7, 2013**
                            San Francisco, California

Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.

       Jay Kent appeals the denial of his motion for reduction in sentence brought

under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), 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).
      Assuming, without deciding, that Kent’s motion for reduction in sentence

did not violate his plea agreement, our holding in United States v. Augustine, 712

F.3d 1290 (9th Cir. 2013), forecloses Kent’s arguments that the Fair Sentencing

Act’s mandatory minimums should apply retroactively to defendants sentenced

before the Act was enacted. The district court did not abuse its discretion in

denying Kent’s § 3582(c)(2) motion.

      AFFIRMED.




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