                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2013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. 12-30099

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00189-JLR-1

       v.
                                                 MEMORANDUM *
MICHAEL ANDROS,

              Defendant - Appellant.

                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                      Argued and Submitted February 4, 2013
                               Seattle, Washington

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Michael Andros appeals the district court’s order denying his motion for

reduction of sentence under 18 U.S.C. § 3582(c)(2). We affirm.

      Section 3582(c)(2) allows a modification of a term of imprisonment when

two requirements are satisfied: (1) the sentence is based on a sentencing range that

subsequently has been lowered by the Sentencing Commission; and (2) such a


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reduction is consistent with applicable policy statements issued by the Sentencing

Commission. See United States v. Waters, 648 F.3d 1114, 1116 (9th Cir. 2011).

Even assuming Andros can satisfy the first requirement, he cannot satisfy the

second.

      The applicable policy statement provides that a reduction in a defendant’s

term of imprisonment is not authorized if an amendment to the Sentencing

Guidelines “does not have the effect of lowering the defendant’s applicable

guideline range.” U.S.S.G. § 1B1.10(a)(2). The term “applicable guideline range”

refers to the defendant’s guideline range before application of any departure or

variance. See United States v. Pleasant, — F.3d. —, 2013 WL 11892, at *3 (9th

Cir. Jan. 2, 2013). Andros’ pre-variance applicable guideline range was his career

offender range under U.S.S.G. § 4B1.1. The Sentencing Commission’s

amendments to the Guidelines have not lowered that guideline range. See United

States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009). Andros is therefore ineligible

for a reduction of sentence.

      Andros points out that his applicable guideline range has, in fact, been

lowered. This reduction, however, results from the Fair Sentencing Act’s

amendments to 21 U.S.C. § 841 and the operation of § 4B1.1, not from an

amendment to the Guidelines Manual. This reduction therefore does not satisfy


                                          2
§ 1B1.10. See U.S.S.G. § 1B1.10(a)(2) (“A reduction in the defendant’s term of

imprisonment is not consistent with this policy statement and therefore is not

authorized under 18 U.S.C. 3582(c)(2) if . . . [a]n amendment listed in

subsection (c) does not have the effect of lowering the defendant’s applicable

guideline range.”).1

      AFFIRMED.




      1
         The court will hold issuance of the mandate in this case until the mandate
issues in United States v. Pleasant, No. 12-10213, — F.3d. —, 2013 WL 11892
(9th Cir. Jan. 2, 2013).

                                          3
