                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 27 2012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. 08-10419

               Plaintiff - Appellee,             D.C. No. 2:05-CR-00222-RCJ

  v.
                                                 MEMORANDUM *
EDDIE SHELBY,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert Clive Jones, Chief Judge, Presiding

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Eddie Shelby 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).
      Shelby contends that the district court abused its discretion by declining to

reduce his sentence based on the retroactive amendments to the Sentencing

Guidelines that lowered the penalties for crack cocaine offenses. Shelby 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).

Neither exception that would allow us to conclude otherwise applies here, because

the terms of the plea agreement provide no indication of a particular Guidelines

sentencing range applicable to Shelby’s offenses, nor is any Guidelines range

expressly used in the agreement or evident from the agreement itself. See United

States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012). As such, Shelby’s sentence

was based on the plea agreement, and the district court lacked jurisdiction to

modify his sentence under section 3582(c)(2). See id.

      AFFIRMED.




                                          2                                      08-10419
