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NOT FOR PUBLICATION OCT 05 2010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.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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.

2 09-50044