                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 25 2013

                                                                        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. 12-30067

               Plaintiff - Appellee,             D.C. No. 3:05-cr-00030-EJL

  v.
                                                 MEMORANDUM *
CHARLES WILLIAM AXTELL,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Charles William Axtell appeals pro se from the district court’s order denying

his second 18 U.S.C. § 3582(c)(2) motion for reduction of sentence and the order

denying his motion for reconsideration. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

          *
             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).
      Axtell contends that he is entitled to a sentence reduction because the Fair

Sentencing Act of 2010 (“FSA”) applies retroactively to reduce the mandatory

minimum sentence imposed for his crack cocaine conviction and because

subsequent amendments to the Sentencing Guidelines lowered the applicable

sentencing Guidelines range. We review de novo whether the district court had

authority to modify a defendant’s sentence under section 3582(c)(2). See United

States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012).

      Axtell’s 120-month sentence was the statutory mandatory minimum at the

time of sentencing. See 21 U.S.C. § 841(b)(1)(A) (2005). Because the FSA’s

reduced mandatory minimums do not apply to defendants sentenced before its

effective date, a reduction in Axtell’s sentence would not be consistent with the

policy statements issued by the Sentencing Commission, and the district court

therefore lacked authority to modify Axtell’s sentence. See 18 U.S.C.

§ 3582(c)(2); U.S.S.G § 1B1.10 cmt. n.1(A); United States v. Augustine, 712 F.3d

1290, 1295 (9th Cir. 2013). Accordingly, the district court properly denied

Axtell’s motions.

      AFFIRMED.




                                                                              12-30067
