                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 12 2013

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


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50370

              Plaintiff-Appellee,                D.C. No. 09-217-GHK

  v.
                                                 MEMORANDUM*
KEVIN DOUCETTE,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. King, District Judge, Presiding

                      Argued and Submitted October 9, 2013
                              Pasadena, California

Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.

       Kevin Doucette appeals the district court’s order denying his motion for

reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant

to 28 U.S.C. § 1291. We review de novo whether a district court may modify an



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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otherwise final sentence under § 3582. 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. Doucette argues that

he is eligible for a sentence reduction under Amendment 750, which made

permanent earlier modifications to the drug quantity table in United States

Sentencing Guideline (“U.S.S.G.”) § 2D1.1 for offenses involving crack cocaine.

But Doucette was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1.

Therefore, his sentence was not based on a Guideline range that has been lowered,

and was ineligible for modification under § 3582. See 18 U.S.C. § 3582(c)(2);

Wesson, 583 F.3d at 731–32.

      Because Doucette cannot satisfy the first requirement for a sentence

modification under § 3582(c)(2), we need not consider Doucette’s ex post facto

challenge to U.S.S.G. § 1B1.10—the Guideline that sets out the policy statements

relevant to the second requirement for a sentence modification under § 3582(c)(2).

AFFIRMED.




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