United States of America, Plaintiff-appellee, v. Antonio Martinez-ortega, Defendant-appellant, 79 F.3d 1155 (9th Cir. 1996)

MEMORANDUM^** 

Antonio Martinez-Ortega appeals pro se the district court's denial of his 18 U.S.C. § 3582(c) (2) motion to modify his sentence. Martinez-Ortega contends that the district court erred by failing to apply Amendment 268 of the Sentencing Guidelines retroactively. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, United States v. Cueto, 9 F.3d 1438, 1440-41 (9th Cir. 1993), and affirm.

The district court has discretion to reduce "a term of imprisonment based on a sentencing range that has subsequently been lowered," if a reduction is consistent with the Sentencing Commission's policy statements. 18 U.S.C. § 3582(c) (2); see United States v. Wales, 977 F.2d 1323, 1327-28 (9th Cir. 1992). If an amendment is not specifically listed in U.S.S.G. § 1B1.10(d), a reduction is not consistent with the Sentencing Commission's policy statement. See U.S.S.G. § 1B1.10(a) (1992); Cueto, 9 F.3d at 1440-41. Thus, an amendment that is not listed in U.S.S.G. § 1B1.10(d) may not be applied retroactively. See Cueto, 9 F.3d at 1441.

Amendment 268 is not listed in U.S.S.G. § 1B1.10(d). Therefore, the district court did not abuse its discretion by refusing to reduce Martinez-Ortega's sentence pursuant to § 3582(c) (2). See Cueto, 9 F.3d at 1441; Wales, 977 F.2d at 1327-28.

Martinez-Ortega is correct that clarifying amendments are generally applied retroactively at sentencing and on direct appeal. See U.S.S.G. § 1B1.11(b) (2); United States v. Aldana-Ortiz, 6 F.3d 601, 602 (9th Cir. 1993) (per curiam); cf. United States v. Sanders, 67 F.3d 855, 856-57 (9th Cir. 1995); United States v. Quinn, 18 F.3d 1461, 1467 (9th Cir.), cert. denied, 114 S. Ct. 2758 (1994). Martinez-Ortega, however, sought a sentence reduction under 18 U.S.C. § 3582(c) (2). His eligibility for such a reduction "is triggered only by an amendment listed in subsection (d)" of U.S.S.G. § 1B1.10. U.S.S.G. § 1B1.10 comment. (n.1). Because Amendment 268 is not listed in U.S.S.G. § 1B1.10(d), Martinez-Ortega was not eligible for a sentence reduction under § 3582(c) (2). See Cueto, 9 F.3d at 1441.

AFFIRMED.