                                                                            FILED
                            NOT FOR PUBLICATION                              APR 11 2011

                                                                         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. 09-10311

               Plaintiff - Appellee,              D.C. No. 2:06-CR-00246-WBS

  v.
                                                  MEMORANDUM *
LEE ANDREW EDDINS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Lee Andrew Eddins appeals from the district court’s order denying his

motion for a reduced sentence, filed pursuant to 18 U.S.C. § 3582(c)(2) . We have

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

       Eddins contends that the district court erred by failing to reduce his 158

          *
             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).
month sentence pursuant to Amendment 706 to the United States Sentencing

Guidelines, which lowered the sentencing range for offenses involving crack

cocaine. The district court did not err by concluding that it lacked jurisdiction to

modify Eddins’ sentence because, notwithstanding the fact that he received a

downward departure for substantial assistance, his ultimate sentence was

determined using the career offender guideline as the starting point. Thus, Eddins’

sentence is not “based on a sentencing range that has subsequently been lowered

by the Sentencing Commission,” as required by § 3582(c)(2). See United States v.

Leniear, 574 F.3d 668, 673 (9th Cir. 2009); see also United States v. Wesson, 583

F.3d 728, 731 (9th Cir. 2009).

      Furthermore, the district court did not err by denying as moot the

government’s motion to withdraw from the parties’ stipulated motion.

      AFFIRMED.




                                           2                                    09-10311
