                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 14 2009

                                                                        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. 09-30062

               Plaintiff - Appellee,             D.C. No. 3:93-cr-00310-ALH

   v.
                                                 MEMORANDUM *
 LARRY STEVEN MALONE,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Oregon
                     Ancer L. Haggerty, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Larry Steven Malone appeals pro se from the district court’s order denying

his 18 U.S.C. § 3582(c)(2) motion for modification of sentence and granting his

motion for a corrected judgment. We have jurisdiction pursuant to 28 U.S.C.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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§ 1291, and we affirm.

        Malone contends that the district court erred in determining that it lacked

authority to resentence him pursuant to § 3582(c)(2) because Guidelines

Amendment 599, addressing the applicability of weapons enhancements for

defendants convicted of § 924(c) violations, applied to him. The district court did

not err in denying the motion because the amended judgment reflects that his

§ 924(c) conviction has been dismissed. In addition, Malone’s contentions

challenging the district court’s drug quantity calculations in the original sentencing

are beyond the scope of a § 3582(c)(2) action. See United States v. Leniear, 574

F.3d 668, 673 (9th Cir. 2009).

       Malone’s contention that he was entitled to personally appear and to allocute

fails. See Fed. R. Crim. P. 43(b)(4); see also United States v. Carper, 24 F.3d

1157, 1162 (9th Cir. 1994) (finding the denial of a defendant’s right to allocution

to be harmless where the district court lacked discretion to impose a sentence

shorter than the one already imposed).

       Finally, the district court did not err by construing the motion for

modification of sentence as also a motion for a corrected judgment, and granting

the motion to reflect the dismissal of the § 924(c) count. See Fed. R. Crim. P. 36;

see also United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984) (finding it


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permissible under under Rule 36 to make a change that conforms the sentence to

the term which the record indicates was intended).

       AFFIRMED.




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