United States v. Larry Malone
Opinion
MEMORANDUM **
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 Unit *871 ed 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).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Larry Steven MALONE, Defendant-Appellant
- Status
- Unpublished