United States v. Emert Flowers ( 2009 )

FILED
NOT FOR PUBLICATION NOV 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30046
Plaintiff - Appellee, D.C. No. 3:01-CR-00271-BR-1
v.
MEMORANDUM *
EMERT REGINALD FLOWERS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted November 4, 2009
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
Emert Reginald Flowers appeals from the district court’s order denying his
motion to reduce sentence under 18 U.S.C. § 3582(c). We have jurisdiction under
28 U.S.C. § 1291. We review de novo, United States v. Leniear, 574 F.3d 668,
672 (9th Cir. 2009), and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err by concluding that it lacked jurisdiction under
18 U.S.C. § 3582(c)(2) to modify Flowers’ sentence. Flowers 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 (2001) (providing that the career offender
base offense level applies where it is greater than the applicable base offense level
under § 2D1.1). Accordingly, Flowers’ “sentence is not ‘based on a sentencing
range that has subsequently been lowered by the Sentencing Commission,’ as
required by § 3582(c)(2).” Leniear, 574 F.3d at 673 (quoting 18 U.S.C. §
3582(c)(2)).
AFFIRMED.
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