FILED

NOT FOR PUBLICATION JAN 26 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10153

Plaintiff - Appellee, D.C. No. 2:98-cr-00402-LDG

v.

MEMORANDUM *

JOSEPH D. CLEMENTS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding

Submitted January 11, 2010 **

Before: BEEZER, TROTT, and BYBEE, Circuit Judges.

Joseph D. Clements appeals from the district court’s order denying his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

EH/Research retroactive application of Amendment 706 to the Sentence Guidelines provisions

governing crack cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

Clements contends that the district court erred by denying his motion for a

sentence reduction under Amendment 706 because his sentence was based, in part,

on a sentencing range calculated under the Drug Quantity Table in U.S.S.G.

§ 2D1.1. This contention fails because Clements qualified as a career offender

under U.S.S.G. § 4B1.1. Because the district court sentenced Clements based on a

sentencing range calculated under § 4B1.1, he is not eligible for a sentence

reduction under Amendment 706. See United States v. Wesson, 583 F.3d 728, 731

(9th Cir. 2009).

AFFIRMED.

EH/Research 2 09-10153