                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 20 2012

                                                                        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. 12-10052

               Plaintiff - Appellee,             D.C. No. 2:97-cr-00080-PMP

  v.
                                                 MEMORANDUM *
FERNANDO CLAVERIA-MARTINEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Fernando Claveria-Martinez appeals from the district court’s denial of 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).
      Claveria-Martinez contends that the district court committed legal error

because it did not understand the rationale behind the Fair Sentencing Act and did

not follow the procedures set forth in section 3582(c)(2). The record reflects that

the district court did not commit legal error and appropriately exercised its

discretion to deny Claveria-Martinez’s motion. See United States v. Lightfoot, 626

F.3d 1092, 1096 (9th Cir. 2010).

      To the extent that Claveria-Martinez renews the contention made in his last

appeal that the district court erred in departing upward in criminal history category

at his original sentencing, we again conclude that his argument is not cognizable in

a section 3582(c)(2) proceeding. See Dillon v. United States, 130 S. Ct. 2683,

2694 (2010).

      AFFIRMED.




                                           2                                    12-10052
