FILED
                             NOT FOR PUBLICATION                            DEC 14 2009

                                                                        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. 09-30062

               Plaintiff - Appellee,             D.C. No. 3:93-cr-00310-ALH

   v.
                                                 MEMORANDUM *
 LARRY STEVEN MALONE,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Oregon
                     Ancer L. Haggerty, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        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.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

AK/Research
§ 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, 

, 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, 

, 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, 

, 490 (9th Cir. 1984) (finding it


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permissible under under Rule 36 to make a change that conforms the sentence to

the term which the record indicates was intended).

       AFFIRMED.




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