Ho

MEMORANDUM **

In 1990, following a jury trial in the District of Hawaii, defendant-appellant Ronald W. Ho was convicted of multiple drug-related offenses and sentenced to 20 years in prison. Ho now appeals from the district court’s denial of his 2003 motion requesting modification of his sentence under 18 U.S.C. § 3582 (c)(2) and challenging his sentence on Sixth Amendment grounds.

Under 18 U.S.C. § 3582 (c)(2), a district court may, in its discretion, modify a previously-imposed sentence if that sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.... ” Ho contends that he is eligible for relief under § 3582(c)(2) because his sentence was enhanced under USSG § 2D1.2 and because a subsequent Guidelines amendment (“Amendment 591”) rendered § 2D1.2 inapplicable to Ho.

We are unpersuaded by this contention, however, because the record in this case overwhelmingly indicates that § 2D1.2 was not actually used to calculate Ho’s sentence. First, there is nothing in the sentencing transcript to suggest that the sentencing judge applied § 2D1.2 in determining Ho’s sentence. Indeed, had the sentencing court applied § 2D1.2, Ho’s final…