United States of America, Plaintiff-appellee, v. Miguel G. Ayarza, Defendant-appellant, 15 F.3d 1090 (9th Cir. 1993)

MEMORANDUM^** 

Miguel Gabriel Ayarza, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion to modify his sentence. Ayarza seeks retroactive application of United States Sentencing Guideline (U.S.S.G.) Amendment 459, which changed U.S.S.G. Sec. 3E1.1, to allow an additional one point downward adjustment for assisting authorities in the prosecution or investigation of one's own offense. We have jurisdiction under 28 U.S.C. § 2255 and affirm.

This court reviews de novo the denial of a section 2255 motion. United States v. Moore, 921 F.2d 207, 209 (9th Cir. 1990). We review de novo the district court's application of the United States Sentencing Guidelines. United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir. 1990).

We recently held that U.S.S.G. Amendment 459 is not retroactive. United States v. Cueto, No. 92-50186, slip op. at 13197-99 (9th Cir. Nov. 23, 1993); United States v. Aldana-Ortiz, No. 91-50664, slip op. at 10505-06 (9th Cir. Sept. 23, 1993).

On May 27, 1988, Ayarza was sentenced for bank robbery. On November 1, 1992, U.S.S.G. Amendment 459 took effect. Therefore, Ayarza's contention is precluded by our holdings in Cueto and Aldana-Ortiz. See Cueto, No. 92-50186, slip op. at 13197-99; Aldana-Ortiz, No. 91-50664, slip op. at 10505-06.

AFFIRMED.