Opinion
No. 09-30062.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 14, 2009.
Kelly A. Zusman, Assistant U.S., Office of the U.S. Attorney, Portland, OR, for Plaintiff-Appellee.
Larry Steven Malone, Edgefield, SC, pro se.
Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. 3:93-cr-00310-ALH.
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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. § 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 permissible under under Rule 36 to make a change that conforms the sentence to the term which the record indicates was intended).