                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 12 2010

                                                                         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. 09-10057

               Plaintiff - Appellee,              D.C. No. 2:97-cr-00080-PMP

  v.                                              MEMORANDUM *

FERNANDO CLAVERIA-MARTINEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                           Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Fernando Claveria-Martinez appeals from the district court’s order granting

his 18 U.S.C. § 3582(c)(2) motion for sentence reduction. We have jurisdiction

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

       Claveria-Martinez contends that the district court erred by failing to consider

          *
             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).
all of the 18 U.S.C. § 3553(a) sentencing factors when ruling on his motion for

sentence reduction. To the extent that Claveria-Martinez contends that the district

court erred by failing to treat the amended Sentencing Guidelines range as

advisory, pursuant to United States v. Booker, 543 U.S. 220 (2005), this contention

is foreclosed by Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). To the

extent that Claveria-Martinez contends that the district court failed to consider the

section 3553(a) factors when determining whether the authorized reduction was

warranted, this contention is belied by the record.

      Claveria-Martinez also contends that a reduction in his criminal history

category is appropriate because the district court improperly relied on his July

1995 arrest when departing upward at the original sentencing hearing. This

contention fails because this aspect of Claveria-Martinez’s sentence was “not

affected by the Commission’s amendment to [U.S.S.G.] § 2D1.1 [and therefore is]

outside the scope of the proceeding authorized by § 3582(c)(2).” Dillon, 130 S. Ct.

at 2693-94.

      AFFIRMED.




                                           2                                    09-10057
