United States v. Brian Berkley, Sr.

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NOT FOR PUBLICATION MAR 13 2012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