United States v. Courtney Jones

358 F. App'x 994

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2009
• Docket: 08-10411
• Status: Unpublished

Opinion

MEMORANDUM **

Courtney Jones appeals from the district court’s order denying his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Jones contends that the district court violated his Sixth Amendment right to due process by considering prison conduct when denying his 18 U.S.C. § 3582(c)(2) motion because the conduct was not proven by a preponderance of the evidence. Assuming that the Government was required to meet this burden, the record reflects that the burden was met. See generally United, States v. Dare, 425 F.3d 634, 642 (9th Cir.2005) (recognizing that, “[a]s a general rule, the preponderance of the evidence standard is the appropriate standard for factual findings used for sentencing”).

Jones also contends that the district court violated U.S.S.G. § 6A1.3, by not receiving evidence or issuing findings regarding “the dispute” over the prison violations. Jones never disputed that he possessed the dangerous weapons or any of the conduct relating to the infractions, so there was no factual dispute to resolve. Cf. United States v. Stoterau, 524 F.3d 988, 1011-12 (9th Cir.2008) (holding that the district court did not violate Fed. R.Crim.P. 32(i) when it failed to rule on the reliability of a law enforcement report because the appellant did not contest the factual accuracy of the report).

Jones’ motion to strike the original reply brief and file a new reply brief is granted and the new reply brief is deemed filed.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.