United States Court of Appeals, Ninth CircuitMar 26, 2010
372 Fed. Appx. 715 (9th Cir. 2010)

No. 09-30005.

Submitted March 16, 2010.

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

Filed March 26, 2010.

Aine Ahmed, Assistant U.S., USSP-Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.

Daniel James Wheat, Beaumont, TX, pro se.

Appeal from the United States District Court for the Eastern District of Washington, Justin L. Quackenbush, District Judge, Presiding. D.C. No. 2:07-CR-00055-JLQ.

Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.


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

Daniel James Wheat appeals pro se from the district court's order denying his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The government contends that the plain language of Wheat's plea agreement precludes this appeal. Wheat is not appealing the sentence imposed, but rather the district court's conclusion that it lacked jurisdiction to modify his sentence. Therefore we may reach the merits. See United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009).

Wheat contends that Amendment 706 to the United States Sentencing Guidelines, retroactively amending U.S.S.G. § 2D1.1 with respect to offenses involving crack cocaine, authorizes the district court to resentence him. The district court did not err by concluding that it lacked jurisdiction pursuant to § 3582(c)(2) to modify Wheat's sentence, as he would have been subject to the same sentencing range had Amendment 706 been in place at the time he was sentenced. See U.S.S.G. § 4B1.1 (2007) (providing that the career offender base offense level applies where it is greater than the applicable base offense level under § 2D1.1). Thus, Wheat's "sentence is not `based on a sentencing range that has subsequently been lowered by the Sentencing Commission,' as required by § 3582(c)(2)." See Leniear, 574 F.3d at 673 (quoting 18 U.S.C. § 3582(c)(2)); see also United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009).