USA v. Emert Flower, No. 09-30046 (9th Cir. 2009)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 16 2009 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-30046 D.C. No. 3:01-CR-00271-BR-1 v. MEMORANDUM * EMERT REGINALD FLOWERS, Defendant - Appellant. Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Submitted November 4, 2009 Portland, Oregon Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges. Emert Reginald Flowers appeals from the district court s order denying his motion to reduce sentence under 18 U.S.C. § 3582(c). We have jurisdiction under 28 U.S.C. § 1291. We review de novo, United States v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009), and affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court did not err by concluding that it lacked jurisdiction under 18 U.S.C. § 3582(c)(2) to modify Flowers sentence. Flowers would have been subject to the same sentencing range had Amendment 706 been in place at the time he was sentenced. See U.S.S.G. § 4B1.1 (2001) (providing that the career offender base offense level applies where it is greater than the applicable base offense level under § 2D1.1). Accordingly, Flowers sentence is not based on a sentencing range that has subsequently been lowered by the Sentencing Commission, as required by § 3582(c)(2). Leniear, 574 F.3d at 673 (quoting 18 U.S.C. § 3582(c)(2)). AFFIRMED. 2
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