United States v. Jaime Diaz-Aspina

FILED NOT FOR PUBLICATION OCT 05 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50044 Plaintiff - Appellee, D.C. No. 2:91-cr-00827-WDK v. MEMORANDUM * JAIME DIAZ-ASPINA, Defendant - Appellant.

Appeal from the United States District Court for the Central District of California William D. Keller, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

Jaime Diaz-Aspina appeals from the district court’s order denying his second 18 U.S.C. § 3582(c)(2) motion to modify his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Following the district court’s grant of his first motion to modify his sentence * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. in 1996, reducing his sentence from 310 months to 293 months, Diaz-Aspina now contends, pursuant to United States v. Booker, 534 U.S. 220 (2005), and United States v. Hicks, 472 F.3d 1167 (9th Cir. 2006), that he is entitled to a full resentencing proceeding so that the district court may consider a further sentence reduction. This contention is foreclosed. See Dillon v. United States, 130 S.Ct. 2683, 2692-93 (2010) (concluding that neither the constitutional nor the remedial aspects of Booker apply to a resentencing proceeding under § 3582(c)(2)).

AFFIRMED.

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