United States v. Beard ( 1997 )

  •                                                                               F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                             UNITED STATES COURT OF APPEALS
                                      TENTH CIRCUIT                                 FEB 7 1997
                                                                              PATRICK FISHER
     UNITED STATES OF AMERICA,                                                          Clerk
                  v.                                            No. 96-2143
                                                          (D.C. No. CIV-95-396-JP)
     HOWARD BEARD,                                               (D. N.M.)
                                     ORDER AND JUDGMENT*
    Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
          After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of this
    appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered
    submitted without oral argument.
          Defendant Howard Beard, a/k/a David Smith, appeals the denial of his motion for
    reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). We affirm.
          Defendant was convicted in 1991 of conspiracy to manufacture methamphetamine,
    in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Because of his prior felony
    drug convictions, defendant was sentenced as a career offender to 262 months'
              This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    imprisonment. Defendant appealed his conviction and sentence, arguing
           the trial court (1) erred by failing to grant his request for production of notes taken
           during a witness interview, (2) erred by allowing a coconspirator to testify
           regarding her conviction on the conspiracy charged against Defendant, (3)
           misapplied the Sentencing Guidelines for career offenders, and (4) lacked
           jurisdiction to enhance Defendant's sentence based on prior state convictions.
    United States v. Smith, 
    984 F.2d 1084
    , 1085 (10th Cir.), cert. denied 
    510 U.S. 873
    (1993). We remanded the case to the district court for consideration of issues (1) and (4).
    The district court held an evidentiary hearing on the two remanded issues, found no merit
    to either issue, and refused to resentence defendant. Defendant filed a second appeal
    challenging the district court's determination of the two remanded issues, as well as its
    refusal to resentence him on remand, and we affirmed the district court. United States v.
    39 F.3d 1193
     (10th Cir. 1994) (table), cert. denied 
    115 S. Ct. 1417
           On May 19, 1995, defendant filed his motion for reduction of sentence, asserting
    he was entitled to resentencing in accordance with recent amendments to the career
    offender provisions. Specifically, defendant cited Amendment 506, which was enacted
    by the Sentencing Commission on November 1, 1994, and which modified the application
    note defining "Offense Statutory Maximum" for purposes of U.S.S.G. § 4B1.1 (career
    offender section)1. Defendant raised two additional issues in his motion: (1) he was
    entitled to various transcripts and records regarding his criminal proceeding; and (2) the
    amount of methamphetamine used by the district court in computing his sentence was
    erroneous. On March 21, 1996, a magistrate judge concluded no reduction in sentence
             As amended, application note 2 to § 4B1.1 provides that the offense statutory
    maximum "refers to the maximum term of imprisonment authorized . . ., not including
    any increase in that maximum term under a sentencing enhancement provision that
    applies because of the defendant's prior criminal record." (Emphasis added.)
    was warranted, noting reductions of sentence pursuant to 18 U.S.C. § 3582 were
    discretionary. The magistrate noted defendant had a long criminal history and was facing
    state criminal charges at the time the presentence report was filed in his federal criminal
    case. The magistrate further noted defendant's original sentence contained no
    adjustments for his role in the offense or acceptance of responsibility. The magistrate
    found no error in the amount of methamphetamine used to calculate defendant's sentence.
    The magistrate denied defendant's request for transcripts and records pertaining to his
    criminal trial, concluding a sufficient record existed to rule on the motion. The district
    court adopted the magistrate's findings and recommendations on June 17, 1996.
           We review the district court's denial of defendant's § 3582(c)(2) motion for abuse
    of discretion. United States v. Telman, 
    28 F.3d 94
    , 96-97 (10th Cir. 1994). While
    defendant's motion was pending in the district court, we issued our opinion in United
    States v. Novey, 
    78 F.3d 1483
     (10th Cir. 1996), holding Amendment 506 was
    inconsistent with the clear directive of 28 U.S.C. § 994(h) which mandates that sentences
    for career offenders be set "at or near the maximum term authorized," and was "therefore
    invalid as beyond the scope of the Commission's authority delegated to it by Congress."
    Id. at 1487. Consistent with Novey, we conclude the district court correctly refused to
    reduce defendant's sentence pursuant to Amendment 506.2 Defendant's remaining
    arguments on appeal--that he was improperly categorized as a career offender and that the
              Even if we were to ignore Novey, we find no abuse of discretion on the part of
    the district court in refusing to reduce defendant's sentence. In particular, the court
    carefully followed the mandate of 18 U.S.C. § 3582(c) and reviewed the factors set forth
    in 18 U.S.C. § 3553. Further, the court made specific findings why a reduction of
    sentence was unwarranted. See United States v. Dorrough, 
    84 F.3d 1309
    , 1311-12 (10th
    Cir.), cert. denied 
    117 S. Ct. 446
    district court incorrectly calculated the amount of methamphetamine involved--do not
    provide a basis for reducing defendant's sentence pursuant to § 3582(c)(2). See United
    States v. Trujeque, 
    100 F.3d 869
    , 870-71 (10th Cir. 1996) (because a § 3582(c)(2) motion
    is not a direct appeal or a collateral attack under 28 U.S.C. § 2255, the viability of the
    motion depends entirely upon the wording of the statute).
           AFFIRMED. The mandate shall issue forthwith.
                                                        Entered for the Court
                                                        Mary Beck Briscoe
                                                        Circuit Judge