                                                                           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                            NOT FOR PUBLICATION                             MAY 21 2013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. 12-30104

               Plaintiff - Appellee,             D.C. No. 3:08-cr-05604-RJB

  v.
                                                 MEMORANDUM *
ANDREW HOUSTON POINTER,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                              Submitted May 14, 2013 **

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

       Andrew Houston Pointer 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).
      Pointer contends that he is entitled to a sentence reduction based on

retroactive amendments to the Sentencing Guidelines that lowered the penalties for

crack cocaine offenses. We review de novo whether the district court had

jurisdiction to modify a defendant’s sentence under section 3582(c)(2). See United

States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012). Pointer 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 been subsequently 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). Contrary to Pointer’s

contention, no sentencing range is evident from the face of the agreement that

could have formed the basis for the specific term of 108 months. See Austin, 676

F.3d at 930. Accordingly, the district court lacked jurisdiction to modify Pointer’s

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

      AFFIRMED.




                                           2                                    12-30104
