United States v. Brian Berkley, Sr. , 471 F. App'x 734 ( 2012 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              MAR 13 2012
    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. 11-50135
    Plaintiff - Appellee,              D.C. No. 2:04-cr-00198-TJH
    v.
    MEMORANDUM *
    BRIAN DARNELL BERKLEY, Sr.,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Terry J. Hatter, District Judge, Presiding
    Submitted March 6, 2012 **
    Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
    Brian Darnell Berkley, Sr., appeals pro se from the district court’s order
    denying his 
    18 U.S.C. § 3582
    (c)(2) motion to modify his sentence. We have
    jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    *
    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).
    Berkley contends that the district court erred by declining to reduce his
    sentence based on Guidelines Amendment 599, which addresses the applicability
    of weapons enhancements for a defendant convicted of violating 
    18 U.S.C. § 924
    (c). This contention lacks merit because Amendment 599 went into effect
    five years before Berkley was sentenced. Therefore his sentence is not “based on a
    sentencing range that has subsequently been lowered by the Sentencing
    Commission,” as required by section 3582(c)(2). See United States v. Leniear, 
    574 F.3d 668
    , 673 (9th Cir. 2009).
    AFFIRMED.
    2                                   11-50135
    

Document Info

Docket Number: 11-50135

Citation Numbers: 471 F. App'x 734

Judges: Fletcher, Reinhardt, Tashima

Filed Date: 3/13/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024