                                                                              FILED
                            NOT FOR PUBLICATION                                FEB 18 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10219

               Plaintiff - Appellee,             D.C. No. 4:09-cr-00203-CW-34

  v.
                                                 MEMORANDUM*
JAMES EDWARD BAGBY,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                   Claudia Wilken, Chief District Judge, Presiding

                           Submitted December 18, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       James Edward Bagby appeals pro se from the district court’s order denying

his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We review de novo

the issue of whether a district court has the authority to reduce a sentence under 18



          *
             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).
U.S.C. § 3582(c)(2). United States v. Pleasant, 704 F.3d 808, 810 (9th Cir. 2013).

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

      Bagby contends that he is eligible for a reduction of his sentence under 18

U.S.C. § 3582(c)(2) because his sentence was based on U.S.S.G. § 2D1.1, which

subsequently was amended by the Sentencing Commission. However, in

accordance with the binding plea agreement, the court did not rely on U.S.S.G. §

2D1.1 to calculate the Guidelines range, but instead relied on the Career Offender

guideline, U.S.S.G. § 4B1.1. Therefore, Bagby’s sentence was not based on a

sentencing range that subsequently has been lowered by the Sentencing

Commission. See United States v. Wesson, 583 F.3d 728, 730-32 (9th Cir. 2009).

In addition, a reduction would not be consistent with the Sentencing Commission’s

policy statements because the Guidelines range calculated prior to any variance has

not been lowered as a result of an amendment. See U.S.S.G. § 1B1.10 cmt. n.1(A);

Pleasant, 704 F.3d at 811-12. Thus, Bagby did not satisfy the criteria required to

be eligible for a sentence reduction and the district court did not err when it denied

Bagby’s motion. See Wesson, 583 F.3d at 730-32.

      AFFIRMED.




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