                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 10 2009

                                                                        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. 09-50084

             Plaintiff - Appellee,               D.C. No. 2:95-cr-00345-RSWL-20

  v.
                                                 MEMORANDUM *
JOE HERNANDEZ, AKA Shakey Joe,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                          Submitted November 16, 2009 **


Before: THOMPSON, TROTT and TALLMAN, Circuit Judges.

       A defendant is not eligible for a sentence reduction under 18 U.S.C. §

3582(c)(2) when the application of that amendment does not result in a sentencing

range “lowered by the Sentencing Commission.” United States v. Leniear, 574


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 668, 673 (9th Cir. 2009). Here, the district court appropriately found as a fact

that the defendant was responsible for the distribution of more than 4.5 kilograms

of crack cocaine. This finding of fact maintained the defendant’s base offense

level at 38, which did not lower his sentencing range. Moreover, the district court

properly exercised its discretion in determining that in consideration of the serious

nature of his convictions -- including multiple RICO racketeering acts of

conspiracy to commit multiple murders -- and the factors in 18 U.S.C. § 3553(a), a

reduction of his sentence was not appropriate.

      AFFIRMED.




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