Opinion
No. 06-10684.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 14, 2007.
Thomas W. Flynn, Esq., USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Vernon Leon Watts, Herlong, CA, pro se.
Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Chief District Judge, Presiding. D.C. No. CR-93-00086-WBS.
Before: LEAVY, RYMER and T.G. NELSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Vernon Leon Watts appeals pro se from the district court's judgment denying his 18 U.S.C. § 3582(c)(2) motion to reduce the 262-month sentence imposed following his conviction for possession of cocaine base with intent to distribute. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Appellant contends that he is entitled to a sentence reduction based on Sentencing Guideline Amendment 484, which clarified the definition of "mixture or substance" in determining drug quantities. Because Amendment 484 was in effect prior to appellant's sentencing, the district court properly found that it lacked authority to grant relief under § 3582(c)(2). See United States v. Sprague, 135 F.3d 1301, 1303 (9th Cir. 1998) (explaining that 18 U.S.C. § 3582(c)(2) provides redress if the Sentencing Guidelines were changed subsequent to defendant's sentencing).
Appellant also contends that Amendment 591 should reduce his sentence. Amendment 591 does not apply because the district court did not use uncharged conduct in the selection of the applicable guideline, and appellant's sentence was not enhanced under U.S.S.G. § 2D1.2. See U.S.S.G., App. C, Amendment 591 (2000).
Appellant's claim under the Ex Post Facto Clause is waived by his failure to present it to the district court. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991).