                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2009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. 08-30252

              Plaintiff - Appellee,              D.C. No. 3:00-CR-00046-JKS

  v.
                                                 MEMORANDUM *
DAVID EDWARD FRAZIER,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Alaska
                James K. Singleton, Senior District Judge, Presiding

                      Argued and Submitted March 12, 2009
                     Withdrawn from Submission July 22, 2009
                         Resubmitted November 17, 2009
                               Seattle, Washington

Before: W. FLETCHER, GOULD and TALLMAN, Circuit Judges.

       David Edward Frazier appeals the district court’s denial of his motion to

modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court

determined that it had no jurisdiction to reduce Frazier’s sentence because he was



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
not sentenced under the cocaine base guidelines that have been amended. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.

       Frazier did not waive his right to appeal the district court’s denial of his

motion in his plea agreement because Frazier does not appeal his sentence.

Instead, Frazier appeals the district court’s ruling that it lacked jurisdiction to re-

sentence Frazier. Therefore, this appeal is properly before us. See United States v.

Leniear, 574 F.3d 668, 672 (9th Cir. 2009) (construing a plea agreement with the

same operative language).

       The district court correctly determined that it had no jurisdiction to modify

Frazier’s sentence because he was sentenced under the career offender guidelines

and not the now-amended cocaine base guideline. See United States v. Wesson,

583 F.3d 728, 731 (9th Cir. 2009). Wesson controls this case. The district court

did not err when it denied Frazier’s motion to modify his sentence, because the

district court had no jurisdiction to modify Frazier’s sentence where the retroactive

cocaine base amendments would not affect Frazier’s guideline range. See id. at

732.

AFFIRMED.
