                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 21 2013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. 12-50141

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00381-VBF

  v.
                                                 MEMORANDUM *
MARCUS GALLIEN, a.k.a. Baby
Scrooge, a.k.a. Scrooge,

               Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Marcus Gallien appeals pro se 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).
      Gallien contends that he is eligible for a sentence reduction because his

sentence was based on a sentencing range calculated under U.S.S.G. § 2D1.1, and

that range was subsequently lowered by the Sentencing Commission through

Amendment 750 to the Guidelines. Gallien acknowledges that the court initially

calculated his sentencing range under U.S.S.G. § 4B1.1, the career offender

Guideline, but contends that it varied downward to the section 2D1.1 sentencing

range, thus entitling him to relief under section 3582(c)(2). We review de novo

whether the district court had jurisdiction to modify a sentence under section

3582(c)(2). See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009).

      The record does not support Gallien’s assertion that the district court

calculated a new sentencing range under section 2D1.1 when it varied below the

career offender Guideline range. Moreover, even if Gallien were correct, a

reduction in his sentence would not be consistent with U.S.S.G. § 1B1.10, which

establishes that the applicable Guidelines range is the pre-variance Guidelines

range. See U.S.S.G. § 1B1.10 cmt. n.1(A) (2011); United States v. Pleasant, 704

F.3d 808, 812 (9th Cir. 2013). Accordingly, the district court lacked jurisdiction to

lower Gallien’s sentence. See 18 U.S.C. § 3582(c)(2); Pleasant, 704 F.3d at 812.

      AFFIRMED.




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