U.S. v. Ware

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Melvin WARE…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 9, 2001

14 F. App'x 825 (9th Cir. 2001)

Opinion

14 Fed.Appx. 825 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Melvin WARE, Defendant-Appellant. No. 98-56414. D.C. No. CV-96-07572-RF CR-91-00117-ER. United States Court of Appeals, Ninth Circuit. July 9, 2001

Submitted June 18, 2001 ^*.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, we deny Ware's request for oral argument.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Movant sought to reduce 121-month sentence for possession and distribution of cocaine. The United States District Court for the Central District of California, Edward Rafeedie, J., denied motion. Movant appealed. The Court of Appeals held that amendment to sentencing guidelines did not apply retroactively to motion to reduce sentence.

Affirmed.

Page 826.

Appeal from the United States District Court for the Central District of California Edward Rafeedie, District Judge, Presiding.

Before CHOY, SKOPIL, and FARRIS, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

Melvin Ware appeals pro se the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his 121-month prison sentence imposed following his conviction for possession and distribution of cocaine, 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction pursuant to 18 U.S.C. § 3742, ¹ and we affirm.

1 We reject the Government's contention that we lack jurisdiction. The appeal is not moot because a reduced sentence would in turn shorten the statutorily mandated term of supervised release that Ware is currently serving. See United States v. Smith, 991 F.2d 1468, 1470 (9th Cir.1993). Although we have held that we lack jurisdiction under § 3742 to review a district court's discretionary decision not to reduce a sentence under § 3582(c)(2), see United States v. Lowe, 136 F.3d 1231, 1233 (9th Cir.1998), we have jurisdiction here because the district court ruling was one of law and not discretion, see id. at 1232.

DISCUSSION

Ware contends that the district court erred by refusing to reduce his sentence based on Amendment 439 to the Sentencing Guidelines regarding the definition of "relevant conduct." We disagree. The guidelines specifically limit which amendments retroactively apply on a motion under § 3582(c)(2). See U.S. S.G. § 1B1.10(c), comment (n.1); United States v. Cruz-Mendoza, 147 F.3d 1069, 1073 (9th Cir.), amended by 163 F.3d 1149 (9th Cir.1998). Accordingly, an amendment not listed in § 1B1.10(c) is not retroactively applicable in a § 3582 motion. See United States v. Cueto, 9 F.3d 1438, 1440-41 (9th Cir.1993). Because § 1B1.10(c) does not include Amendment 439, the district court did not err by refusing to apply it to Ware's sentence.

AFFIRMED.