United States of America v. BRIAN DARNELL BERKLEY, Sr.

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN DARNELL BERKLEY, Sr.,
Defendant - Appellant.
No. 11-50135
D.C. No. 2:04-cr-00198-TJH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Submitted March 6, 2012**
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Brian Darnell Berkley, Sr., appeals pro se from the district court’s order
denying his 18 U.S.C. § 3582(c)(2) motion to modify his sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
MAR 13 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-50135 2
Berkley contends that the district court erred by declining to reduce his
sentence based on Guidelines Amendment 599, which addresses the applicability
of weapons enhancements for a defendant convicted of violating 18 U.S.C.
§ 924(c). This contention lacks merit because Amendment 599 went into effect
five years before Berkley was sentenced. Therefore his sentence is not “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission,” as required by section 3582(c)(2). See United States v. Leniear, 574
F.3d 668, 673 (9th Cir. 2009).
AFFIRMED.

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