                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 08 2011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. 10-50169

               Plaintiff - Appellee,             D.C. No. 3:07-cr-02965-JTM

  v.
                                                 MEMORANDUM *
RICARDO RUIZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Ricardo Ruiz appeals pro se from the district court’s order denying his

18 U.S.C. § 3582(c)(2) motion to reduce his sentence and, in the alternative,

construing his motion as a 28 U.S.C. § 2255 motion and denying the same. 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).
      To the extent that Ruiz challenges the district court’s denial of his

§ 3582(c)(2) motion, his appeal lacks merit because he fails to demonstrate that his

sentence is 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. Paulk, 569

F.3d 1094, 1095-96 (9th Cir. 2009) (per curiam).

      To the extent that Ruiz appeals from the district court’s denial of a § 2255

motion, we construe his notice of appeal as a request for a certificate of

appealability on the issues in his opening brief. So construed, the request is

denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05

(9th Cir.1999) (per curiam).

      AFFIRMED.




                                           2                                     10-50169
