United States of America v. Larry Steven Malone

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
AK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY STEVEN MALONE,
Defendant - Appellant.
No. 09-30062
D.C. No. 3:93-cr-00310-ALH
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Larry Steven Malone appeals pro se from the district court’s order denying
his 18 U.S.C. § 3582(c)(2) motion for modification of sentence and granting his
motion for a corrected judgment. We have jurisdiction pursuant to 28 U.S.C.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1291, and we affirm.
Malone contends that the district court erred in determining that it lacked
authority to resentence him pursuant to § 3582(c)(2) because Guidelines
Amendment 599, addressing the applicability of weapons enhancements for
defendants convicted of § 924(c) violations, applied to him. The district court did
not err in denying the motion because the amended judgment reflects that his
§ 924(c) conviction has been dismissed. In addition, Malone’s contentions
challenging the district court’s drug quantity calculations in the original sentencing
are beyond the scope of a § 3582(c)(2) action. See United States v. Leniear, 574
F.3d 668, 673 (9th Cir. 2009).
Malone’s contention that he was entitled to personally appear and to allocute
fails. See Fed. R. Crim. P. 43(b)(4); see also United States v. Carper, 24 F.3d
1157, 1162 (9th Cir. 1994) (finding the denial of a defendant’s right to allocution
to be harmless where the district court lacked discretion to impose a sentence
shorter than the one already imposed).
Finally, the district court did not err by construing the motion for
modification of sentence as also a motion for a corrected judgment, and granting
the motion to reflect the dismissal of the § 924(c) count. See Fed. R. Crim. P. 36;
see also United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984) (finding it

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permissible under under Rule 36 to make a change that conforms the sentence to
the term which the record indicates was intended).
AFFIRMED.

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