                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 13-50332
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                        5:00-cr-00016-RT-1

 GEARY WAYNE WATERS, JR.,
         Defendant-Appellant.                      OPINION


        Appeal from the United States District Court
            for the Central District of California
      Robert J. Timlin, Senior District Judge, Presiding

                  Submitted October 10, 2014*
                     Pasadena, California

                    Filed November 14, 2014

       Before: Andrew J. Kleinfeld, Susan P. Graber,
            and John B. Owens, Circuit Judges.

                        Per Curiam Opinion




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                  UNITED STATES V. WATERS

                           SUMMARY**


                           Criminal Law

   The panel affirmed the district court’s order dismissing a
motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) based on Sentencing Guidelines Amendment
759, which made permanent and retroactive earlier
modifications to the drug-quantity table for offenses
involving crack cocaine.

    The panel rejected as foreclosed by this court’s decision
in the defendant’s previous appeal the defendant’s argument
that he is eligible for a reduction under the Amendment.
Because the Amendment had no effect on his applicable
guideline range due to his career offender status, the
defendant is ineligible for a reduction.

    The panel rejected the defendant’s ex post facto challenge
to a 2011 amendment to Application Note 6 of U.S.S.G.
§ 1B1.10, which directs district courts to use the version of
the policy statement in effect on the date on which the court
reduces the defendant’s term of imprisonment, restricting a
district court’s discretion to lower a defendant’s sentence
below the amended Guidelines. The panel wrote that because
application of the amendments would not increase the
punishment for the crime over what was imposed when the
defendant was sentenced, there is no ex post facto problem.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. WATERS                     3


                        COUNSEL

Carlton F. Gunn, Pasadena, California, for Defendant-
Appellant.

André Birotte, Jr., United States Attorney; Robert E.
Dugdale, Assistant United States Attorney; Todd T. Tristan,
Assistant United States Attorney, Los Angeles, California, for
Plaintiff-Appellee.


                         OPINION

PER CURIAM:

   Geary W. Waters appeals the district court’s order
dismissing his motion for reduction of sentence under
18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we review de novo whether a district
court has jurisdiction to modify an otherwise final sentence.
United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009).
We affirm.

    Section 3582(c)(2) allows modification of a term of
imprisonment when: (1) the sentence is based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission; and (2) such reduction is consistent with
applicable policy statements issued by the Sentencing
Commission. Id. Neither of Waters’s two arguments
supports jurisdiction for the district court to reduce his
sentence.
4                UNITED STATES V. WATERS

                               I.

    First, Waters argues that he is eligible for sentence
reduction under Amendment 759, which made permanent and
retroactive earlier modifications to the drug-quantity table in
United States Sentencing Guideline (U.S.S.G.) § 2D1.1 for
offenses involving cocaine base (crack cocaine). This
argument is foreclosed by our decision in Waters’s previous
appeal. The district judge considered the drug quantity table
when sentencing Waters, but also determined that Waters was
a career offender pursuant to U.S.S.G. § 4B1.1, and we
declined to review his career offender status. United States
v. Waters, 648 F.3d 1114, 1118 (9th Cir. 2011). Therefore,
although Waters is “correct that he was sentenced in part
based on the crack cocaine guidelines in § 2D1.1 that have
now been revised[,] . . . he is ineligible for a reduction of
sentence because ‘[the Amendment had] no effect on his
applicable guideline range’” due to his career offender status.
Id. at 1119 (quoting Wesson, 583 F.3d at 732).

                               II.

    Waters next argues that the 2011 amendment to
Application Note 6 of U.S.S.G. § 1B1.10 violates the Ex Post
Facto Clause of the United States Constitution by directing
district courts to “use the version of this policy statement that
is in effect on the date on which the court reduces the
defendant’s term of imprisonment.” Because implementation
of amended Application Note 6 restricts a district court’s
discretion to lower a defendant’s sentence below the amended
Guidelines, Waters asserts that this change is sufficient to
trigger the protections of the Ex Post Facto Clause.
                 UNITED STATES V. WATERS                       5

    Waters correctly states the test for violation of the Ex Post
Facto Clause: (1) retroactive application of a criminal law,
that (2) disadvantages the defendant. United States v. Johns,
5 F.3d 1267, 1270 (9th Cir. 1993). To implicate ex post facto
concerns, amendments to the Sentencing Guidelines must
present “a sufficient risk of increasing the measure of
punishment attached to the covered crimes.” Peugh v. United
States, 133 S.Ct. 2072, 2082 (2013) (emphasis added)
(internal quotation marks omitted). The Seventh and
Eleventh Circuits have applied this doctrine in the context of
§ 1B1.10, and we find their reasoning persuasive.

    In United States v. Colon, 707 F.3d 1255 (11th Cir. 2013),
the Eleventh Circuit held that the district court’s application
of the post-Amendment 759 version of § 1B1.10 did not
violate the Ex Post Facto Clause even though its application
made Colon ineligible for a reduction in sentence. Id. at
1259. In 2008, Colon received a sentence reduction based on
Amendment 706. The court applied both the new amended
guidelines and the downward departure that she received at
her initial sentencing resulting in a well below-guidelines
sentence. When Amendment 750 again reduced the penalties
for crack cocaine offenses, she filed a second motion to
reduce her sentence, but this time Amendment 759 prevented
the court from reducing her sentence below the amended
guidelines. Id. at 1258. In rejecting the ex post facto
challenge, the court reasoned that “[s]o long as the effect of
post-conduct amendments to the guidelines is not to increase
a defendant’s punishment beyond what it would have been
without those amendments, . . . there is no ex post facto
problem.” Id. at 1259.

   In United States v. Diggs, No. 13-2718, ___ F.3d ___,
2014 WL 4728941 (7th Cir. Sept. 24, 2014), the Seventh
6               UNITED STATES V. WATERS

Circuit also found no ex post facto problem when the district
court rejected Diggs’s motion for a sentence reduction. Id. at
*1. Similar to Colon, Diggs had received a generous
downward departure at his initial sentencing. He argued that
the court should have applied the version of § 1B1.10 as it
existed as the time of his offense allowing him to gain the
benefit of both his initial downward departure and the
reductions made by Amendment 750. The Seventh Circuit
held regarding the ex post facto issue that it was “ultimately
unimportant that the policy amendment changed the policy in
effect at the time of Diggs’ sentencing because it affected a
law that became more lenient.” Id. at *2.

    The application of the 2011 version of § 1B1.10 to
Waters’s case may have prevented him, like Colon and
Diggs, from benefitting from recent reductions in the harsh
crack cocaine penalties. But, because application of the
amendments would not increase the punishment for his crime
over what was imposed when he was sentenced, there is no ex
post facto problem.

    AFFIRMED.
