                                                                             FILED
                           NOT FOR PUBLICATION                               NOV 16 2009

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 09-30046

             Plaintiff - Appellee,              D.C. No. 3:01-CR-00271-BR-1

       v.
                                                MEMORANDUM *
EMERT REGINALD FLOWERS,

             Defendant - Appellant.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                          Submitted November 4, 2009
                               Portland, Oregon

Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.

      Emert Reginald Flowers appeals from the district court’s order denying his

motion to reduce sentence under 18 U.S.C. § 3582(c). We have jurisdiction under

28 U.S.C. § 1291. We review de novo, United States v. Leniear, 574 F.3d 668,

672 (9th Cir. 2009), and affirm.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err by concluding that it lacked jurisdiction under

18 U.S.C. § 3582(c)(2) to modify Flowers’ sentence. Flowers would have been

subject to the same sentencing range had Amendment 706 been in place at the time

he was sentenced. See U.S.S.G. § 4B1.1 (2001) (providing that the career offender

base offense level applies where it is greater than the applicable base offense level

under § 2D1.1). Accordingly, Flowers’ “sentence is not ‘based on a sentencing

range that has subsequently been lowered by the Sentencing Commission,’ as

required by § 3582(c)(2).” Leniear, 574 F.3d at 673 (quoting 18 U.S.C. §

3582(c)(2)).

      AFFIRMED.




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