                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 03 2010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. 10-30008

               Plaintiff - Appellee,             D.C. No. 2:90-cr-00323-BJR

  v.
                                                 MEMORANDUM *
URIEL CASTANEDA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                 Barbara Jacobs Rothstein, District Judge, Presiding

                            Submitted August 23, 2010 **

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

       Uriel Castaneda appeals pro se 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).
      Castaneda contends he is entitled to a sentence reduction based on

Sentencing Guideline Amendment 484, which clarified that the attributable drug

quantity under U.S.S.G. § 2D1.1 did not include any substance that had to be

removed before the drugs were usable. The district court properly denied the

motion because Castaneda’s “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)

(quoting 18 U.S.C. § 3582(c)(2)); see also United States v. Sprague, 135 F.3d

1301, 1306-07. (9th Cir. 1998) (finding that it is the movant’s burden to show that

the retroactive amendment is applicable to the challenged sentence and that, under

Amendment 484, he or she must show, by a preponderance of the evidence, that

“the mixture or substance used in sentencing contained materials that must be

separated to render the controlled substance useable.”).

      With respect to Castaneda’s argument that the district court denied the

motion by erroneously changing the drug amounts used in calculating his sentence,

the record reflects that the district court used the same base offense level that

applied when it imposed the original sentence, and that any discrepancy was

inadvertent. Accordingly, this argument lacks merit.




                                           2                                        10-30008
      Finally, because the record is devoid of any evidence that the drugs used in

calculating Castaneda’s sentence contained an unusable substance that had to be

removed prior to consumption, the district court did not abuse its discretion in

failing to hold an evidentiary hearing. See United States v. Townsend, 98 F.3d 510,

513 (9th Cir. 1996).

      AFFIRMED.




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