United States v. James Beasley, Jr.

FILED
NOT FOR PUBLICATION DEC 10 2009
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. 08-10452
Plaintiff - Appellee, D.C. No. 3:89-cr-00602-MHP
v.
MEMORANDUM *
JAMES L. BEASLEY, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Submitted December 7, 2009 **
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
Appellant James Beasley challenges the district court’s denial of his motion
to reduce his sentence pursuant to 18 U.S.C. § 3582, and the district court’s denial
of his petition for a writ of audita querela.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
The district court sentenced Beasley for conspiracy to distribute fifty
kilograms or more of cocaine powder, not cocaine base, see U.S.S.G. §
2D1.1(c)(1) (Nov. 1, 1987). Beasley was not indicted for conspiracy to distribute
cocaine base, and the presentence report does not mention cocaine base.
Therefore, Beasley’s sentence was not “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” United States v.
Wesson, 583 F.3d 728, 730 (9th Cir. 2009) (citation omitted); see also 18 U.S.C. §
3582(c)(2). The district court, therefore, properly denied Beasley’s motion to
reduce his sentence pursuant to 18 U.S.C. § 3582.1
For this same reason, the district court also properly denied Beasley’s
petition for a writ of audita querela. See Carrington v. United States, 503 F.3d
888, 890 n.2 (9th Cir. 2007).
AFFIRMED.
1
Because Beasley was not entitled to resentencing, the district court was not
required to apply Apprendi v. New Jersey, 530 U.S. 466 (2000), to Beasley’s
sentence. See Wesson, 583 F.3d at 730; see also United States v. Sanchez-
Cervantes, 282 F.3d 664, 673 (9th Cir. 2002), as amended (holding that Apprendi
does not apply retroactively).
2