United States v. Stokes

300 F. App'x 507

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2008
• Docket: No. 08-30159
• Status: Published

Opinion

MEMORANDUM

**

We have received appellants’ response to this court’s August 18, 2008 order to show cause. A review of the record and appellants’ response indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard).

As appellant concedes, the district court correctly noted that Amendment 709 to the United States Sentencing Guidelines, changing the manner in which criminal history points are scored, does not apply retroactively. See United States Sentencing Guidelines § lB1.10(c) and United States Sentencing Guidelines Manual, Supplement to Appendix C, p. 240, November 1, 2007.

Appellant further acknowledges that even if the amendment at issue were a “clarifying amendment” that applied retroactively, such retroactive calculation could only occur in the context of a direct appeal or a 28 U.S.C. § 2255 petition, and not in a motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c).

Accordingly, we summarily affirm the district court’s judgment.

All pending motions are denied as moot.

AFFIRMED.

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