                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 26 2010

                                                                        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. 09-50080

               Plaintiff - Appellee,             D.C. No. 2:03-cr-00460-RSWL

   v.
                                                 MEMORANDUM *
 ABRAHAM FERREL GUTIERREZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                     Ronald S.W. Lew, District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Abraham Ferrel Gutierrez appeals from the district court’s order denying his

18 U.S.C. § 3582(c)(2) motion for 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

SZ/Research
       Gutierrez contends that the district court erred when it denied his motion for

a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2). The district court

correctly determined that it did not have the authority to reduce Gutierrez’s

sentence because Amendment 706 did not affect the applicable sentencing range.

See 18 U.S.C. § 3582(c); see also United States v. Leniear, 574 F.3d 668, 674 (9th

Cir. 2009). We reject Gutierrez’s contention that application of § 3582(c)(2) to the

drug quantity in his case renders his Guidelines’ range mandatory.

       AFFIRMED.




SZ/Research                               2                                     09-50080
