                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          FEB 03 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 UNITED STATES OF AMERICA,                       No. 08-30230

               Plaintiff - Appellee,             D.C. No. 1:01-cr-00065-CCL

   v.
                                                 MEMORANDUM *
 RAYMOND EUGENE COTHARN,

               Defendant - Appellant.



                     Appeal from the United States District Court
                             for the District of Montana
                     Charles C. Lovell, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Raymond Eugene Cotharn appeals from the district court’s order denying his

18 U.S.C. § 3582(c)(2) motion for a reduction of sentence. We have jurisdiction

pursuant to 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

AK/Research
       Cotharn contends that the district court erred in denying his motion for

resentencing pursuant to the retroactive amendments to the crack cocaine

Sentencing Guidelines. The district court did not err in denying the motion

because Cotharn was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1.

See United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009).

       Moreover, Cotharn’s contention that the district court had authority under

United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), to resentence him pursuant

to the advisory Guidelines lacks merit. See U.S.S.G § 1B1.10 cmt. n.1(A) (2008);

see also United States v. Leniear, 574 F.3d 668, 673-74 (9th Cir. 2009).

       AFFIRMED.




AK/Research                               2                                       08-30230
