United States v. Rabieh ( 2010 )


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  •                                                                           FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
    
                                                                           June 29, 2010
                       UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                           Clerk of Court
                                    TENTH CIRCUIT
    
    
    
     UNITED STATES OF AMERICA,
    
                  Plaintiff - Appellee,                      No. 09-6294
     v.                                                    (W.D. Oklahoma)
     MICHAEL DUANE RABIEH,                          (D.C. No. 5:07-CR-00058-C-2)
    
                  Defendant - Appellant.
    
    
                               ORDER AND JUDGMENT *
    
    
    Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
    
    
    
          After examining the briefs and the appellate record, this court has
    
    determined unanimously that oral argument would not materially assist the
    
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
    
    Accordingly, the case is ordered submitted without oral argument.
    
          Proceeding pro se, Michael Duane Rabieh appeals the district court’s denial
    
    of the Motion for Modification of Sentence he brought pursuant to 18 U.S.C.
    
    § 3582(c)(2). In 2007, Rabieh pleaded guilty to distributing methamphetamine, in
    
    
          *
            This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    violation of 21 U.S.C. § 841(b)(1)(C). United States v. Rabieh, 259 F. App’x
    
    143, 143 (10th Cir. 2007). Despite a provision in the plea agreement waiving the
    
    right to appeal or collaterally attack his conviction and sentence, Rabieh filed a
    
    direct appeal. Id. This court granted the Government’s motion to dismiss the
    
    appeal, concluding Rabieh knowingly and voluntarily entered into the plea
    
    agreement. Id. at 145. When the district court thereafter enforced the waiver and
    
    denied Rabieh’s 28 U.S.C. § 2255 motion, this court denied his request for a
    
    certificate of appealability. United States v. Rabieh, 327 F. App’x 71, 74 (10th
    
    Cir. 2009).
    
          Rabieh then filed the § 3582(c)(2) motion that is the subject of this appeal.
    
    In his motion, Rabieh argued his sentence should be modified based on changes
    
    made to the United States Sentencing Guidelines by Amendments 493, 506, and
    
    709. See United States v. Torres-Aquino, 
    334 F.3d 939
    , 940 (10th Cir. 2003)
    
    (“Under 18 U.S.C. § 3582(c)(2), a court may reduce a previously imposed
    
    sentence if the Sentencing Commission has lowered the applicable sentencing
    
    range and ‘such a reduction is consistent with applicable policy statements issued
    
    by the Sentencing Commission.’”). The district court concluded it did not have
    
    authority under § 3582(c)(2) to grant Rabieh the relief he sought. The court
    
    reasoned that Amendments 493 and 506 became effective before Rabieh was
    
    sentenced, thus neither subsequently lower his sentencing range. Further,
    
    Amendment 709 could not be considered as a basis for a sentence reduction
    
                                             -2-
    because it is not retroactive. Accordingly, the district court concluded it had no
    
    power under § 3582(c)(2) to modify Rabieh’s sentence. The district court also
    
    rejected Rabieh’s Booker claims, noting he was sentenced after Booker was
    
    decided and further concluding the claims raised are not cognizable in a
    
    § 3582(c)(2) motion. See Dillon v. United States, No. 09-6338, 
    2010 WL 2400109
    , at *8-*9 (U.S. June 17, 2010); United States v. Sharkey, 
    543 F.3d 1236
    ,
    
    1239 (10th Cir. 2008) (“Booker does not provide a basis for a sentence reduction
    
    under § 3582(c)(2).” (quotation and alteration omitted)). In the alternative, the
    
    court concluded the claims Rabieh sought to raise in the § 3582(c)(2) motion fell
    
    within the scope of the waiver in his plea agreement which he entered into
    
    knowingly and voluntarily. See United States v. Hahn, 
    359 F.3d 1315
    , 1327 (10th
    
    Cir. 2004) (en banc).
    
          Rabieh filed the instant appeal, challenging the district court’s denial of his
    
    § 3582(c)(2) motion. Having reviewed the record, the appellate briefs, and the
    
    applicable law, we conclude the denial of Rabieh’s § 3582(c)(2) motion was
    
    clearly correct. Accordingly, the district court’s order denying Rabieh motion is
    
    affirmed for substantially the reasons stated in the district court’s order dated
    
    December 11, 2009.
    
    
    
    
                                             -3-
    Rabieh’s motion to proceed in forma pauperis on appeal is granted.
    
                                                ENTERED FOR THE COURT
    
    
                                                Michael R. Murphy
                                                Circuit Judge
    
    
    
    
                                          -4-
    

Document Info

DocketNumber: 09-6294

Filed Date: 6/29/2010

Precedential Status: Non-Precedential

Modified Date: 12/21/2014