United States of America v. David Edward Frazier

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID EDWARD FRAZIER,
Defendant - Appellant.
No. 08-30252
D.C. No. 3:00-CR-00046-JKS
MEMORANDUM *
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted March 12, 2009
Withdrawn from Submission July 22, 2009
Resubmitted November 17, 2009
Seattle, Washington
Before: W. FLETCHER, GOULD and TALLMAN, Circuit Judges.
David Edward Frazier appeals the district court’s denial of his motion to
modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court
determined that it had no jurisdiction to reduce Frazier’s sentence because he was
FILED
NOV 19 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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not sentenced under the cocaine base guidelines that have been amended. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
Frazier did not waive his right to appeal the district court’s denial of his
motion in his plea agreement because Frazier does not appeal his sentence.
Instead, Frazier appeals the district court’s ruling that it lacked jurisdiction to re-
sentence Frazier. Therefore, this appeal is properly before us. See United States v.
Leniear, 574 F.3d 668, 672 (9th Cir. 2009) (construing a plea agreement with the
same operative language).
The district court correctly determined that it had no jurisdiction to modify
Frazier’s sentence because he was sentenced under the career offender guidelines
and not the now-amended cocaine base guideline. See United States v. Wesson,
583 F.3d 728, 731 (9th Cir. 2009). Wesson controls this case. The district court
did not err when it denied Frazier’s motion to modify his sentence, because the
district court had no jurisdiction to modify Frazier’s sentence where the retroactive
cocaine base amendments would not affect Frazier’s guideline range. See id. at
732.
AFFIRMED.

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