United States v. Gary Callahan , 455 F. App'x 766 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 27 2011
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. 10-10611
Plaintiff - Appellee, D.C. No. 2:89-cr-00178-GMS
v.
MEMORANDUM *
GARY PATRICK CALLAHAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Gary Patrick Callahan appeals from the district court’s order denying his
18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Callahan contends that he is entitled to a sentence reduction based on
*
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).
Amendment 739 to the Sentencing Guidelines, which amended U.S.S.G. § 5H1.11
to allow a sentencing court to consider whether a defendant’s military service is
relevant in determining whether a departure is warranted. See U.S.S.G., Appendix
C, Amendment 739 (2010). This claim lacks merit because Amendment 739 did
not alter Callahan’s applicable sentencing range, therefore his sentence is not
“based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.” See United States v. Leniear, 574 F.3d 668, 673 (9th
Cir. 2009); 18 U.S.C. § 3582(c)(2). Moreover, a reduction in Callahan’s term of
imprisonment would not be “consistent with applicable policy statements issued by
the Sentencing Commission.” See Leniear, 574 F.3d 674; U.S.S.G. §1B1.10(a)(2).
To the extent that Callahan raises additional claims to support his request for
a sentence reduction, those claims are not cognizable in a motion under 3582(c)(2).
AFFIRMED.
2 10-10611