Opinion
No. 08-10452.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. 18 U.S.C.A. § 3582(c)(2).
Filed December 10, 2009.
Kirstin M. Ault, Assistant U.S., Barbara Valliere, Assistant U.S., Office of the U.S. Attorney, San Francisco, CA, for Plaintiff-Appellee.
Marc Jonathan Zilversmit, Esquire, Marc J. Zilversmit, Attorney at Law, San Francisco, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California, Marilyn H. Patel, District Judge, Presiding. D.C. No. 3:89-cr-00602-MHP.
Before: O'SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appellant James Beasley challenges the district court's denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582, and the district court's denial of his petition for a writ of audita querela.
The district court sentenced Beasley for conspiracy to distribute fifty kilograms or more of cocaine powder, not cocaine base, see U.S.S.G. § 2D1.1(c)(1) (Nov. 1, 1987). Beasley was not indicted for conspiracy to distribute cocaine base, and the presentence report does not mention cocaine base. Therefore, Beasley's sentence was not "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." United States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009) (citation omitted); see also 18 U.S.C. § 3582(c)(2). The district court, therefore, properly denied Beasley's motion to reduce his sentence pursuant to 18 U.S.C. § 3582.
Because Beasley was not entitled to resentencing, the district court was not required to apply Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to Beasley's sentence. See Wesson, 583 F.3d at 730; see also United States v. Sanchez-Cervantes, 282 F.3d 664, 673 (9th Cir. 2002), as amended (holding that Apprendi does not apply retroactively).
For this same reason, the district court also properly denied Beasley's petition for a writ of audita querela. See Carrington v. United States, 503 F.3d 888, 890 n. 2 (9th Cir. 2007).