                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 28 2011

                                                                        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. 10-10249

               Plaintiff - Appellee,             D.C. No. 2:91-cr-00139-EHC

  v.
                                                 MEMORANDUM *
GONZALO GOMEZ-MORALES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Earl H. Carroll, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Gonzalo Gomez-Morales appeals pro se from the district court’s order

denying his 18 U.S.C. § 3582(c)(2) motion for modification of sentence. We have

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

       Gomez contends that Amendment 591 to the United States Sentencing

          *
             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).
Guidelines, clarifying the application of U.S.S.G. § 2D1.2, authorizes the district

court to resentence him. The record reflects that Gomez’s base offense level was

calculated under § 2D1.1(c)(1), rather than § 2D1.2; therefore Amendment 591

does not apply to him. Accordingly, Gomez cannot demonstrate that his sentence

is based on a sentencing range that has subsequently been lowered by the

Sentencing Commission, as required by § 3582(c)(2). See United States v.

Leniear, 574 F.3d 668, 673 (9th Cir. 2009).

      Gomez also contends that he is entitled to relief under Amendment 591

because the drug quantity used to calculate his base offense level was determined

by the sentencing court, rather than a jury. This argument is foreclosed. See

Dillon v. United States, 130 S. Ct. 2683, 2692 (2010) (proceedings under

§ 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts

found by a jury beyond a reasonable doubt).

      AFFIRMED.




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