United States v. Grayson ( 2010 )

  •                                                                                     FILED
                                                                            United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                            Tenth Circuit
                                       TENTH CIRCUIT                                July 20, 2010
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
           Plaintiff - Appellee,
    v.                                                            No. 10-8010
                                                                   (D. Wyo.)
    ERIC GRAYSON,                                      (D.C. No. 1:08-CR-00173-WFD-1)
           Defendant - Appellant.
                                   ORDER AND JUDGMENT*
    Before BRISCOE, Chief Circuit Judge, TACHA, and O'BRIEN, Circuit Judges.
           After examining the briefs and the appellate record, this panel concludes 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). This case is submitted for decision without oral
           Eric Grayson entered into a Rule 11(c)(1)(C) plea agreement which called for 180
    months imprisonment. Pursuant to the agreement, he pled guilty to offenses involving
             This order and judgment is an unpublished decision, not binding precedent. 10th
    Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
    It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
    Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
    Citation to an order and judgment must be accompanied by an appropriate parenthetical
    notation B (unpublished). Id.
    the distribution of crack cocaine. The district court accepted the binding agreement and
    plea; it sentenced Grayson accordingly. Eleven months later, Grayson moved, pro se,1 to
    reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court dismissed for lack
    of jurisdiction. He appealed.2 We affirm.
                                      I.      BACKGROUND
           Grayson pled guilty to two counts of aiding and abetting the distribution of crack
    cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 and one count
    of conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C.
    §§ 841(a)(1), (b)(1)(B), 846 and 851, committed on May 19, 2008. On January 8, 2009,
    the district court accepted the plea agreement and, being bound by it, imposed the
    sentence agreed upon by Grayson and the government — 180 months imprisonment. See
    Fed. R. Crim. P. 11(c)(1)(C).3; cf. Fed. R. Crim. P. 11(c)(1)(B) (non-binding sentencing
    recommendations). On December 16, 2009, Grayson moved to reduce the sentence
            We liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan., 
    318 F.3d 1183
    , 1187 (10th Cir. 2003).
             Our jurisdiction derives from 18 U.S.C. § 3742(a)(2), which permits appeals
    from sentences “imposed as a result of an incorrect application of the sentencing
    guidelines,” and from 28 U.S.C. § 1291, which permits “appeals from all final decisions
    of the district courts of the United States . . . .”
               The rule provides in relevant part:
           If the defendant pleads guilty . . . to . . . a charged offense . . ., the plea
           agreement may specify that an attorney for the government will: . . . agree
           that a specific sentence or sentencing range is the appropriate disposition of
           the case . . . (such a recommendation or request binds the court once the
           court accepts the plea agreement).
    Fed. R. Crim. P. 11(c)(1)(C).
    under 18 U.S.C. § 3582(c)(2). He argued Amendment 7064 to the United States
    Sentencing Guidelines required a sentence reduction. Relying on United States v.
    100 F.3d 869
     (10th Cir. 1996), the court denied the motion for lack of
    jurisdiction, saying “Grayson may not seek a sentence reduction under [18 U.S.C. §
    3582(c)(2)] as his sentence was part of a plea agreement specifying a term of
    imprisonment pursuant to Rule 11(c)(1)(C).” (R. Vol. I at 67.)
                                     II.      DISCUSSION
           Our review is de novo. United States v. Cobb, 
    584 F.3d 979
    , 982 (10th Cir. 2009),
    reh’g en banc granted, 
    595 F.3d 1202
     (10th Cir.), reh’g en banc vacated and judgment
    603 F.3d 1201
     (10th Cir. 2010). A district court’s ability to alter an imposed
    prison term is statutorily constrained. “[A] court may not modify a term of imprisonment
    once it has been imposed except . . . in the case of a defendant who has been sentenced
    to a term of imprisonment [1] based on a sentencing range that [2] has subsequently been
    lowered by the Sentencing Commission . . . .” 18 U.S.C. § 3582(c)(2) (emphasis added).
    As this case does not fall within the statutory exception, the district court was powerless
    to grant the requested relief.
    A. “Based On” the Sentencing Guidelines
           Trujeque held a sentence imposed pursuant to Rule 11(c)(1)(C) is “not ‘based on a
             In 2007, the United States Sentencing Commission amended the drug quantity
    table in USSG §2D1.1(c) to reduce the sentencing disparity between crack cocaine and
    powder cocaine. USSG App. C, Amend. 706 (2007). The amendment reduced the base
    offense level for crack cocaine-related offenses by two levels. See United States v.
    549 F.3d 833
    , 835 (10th Cir. 2008), cert. denied, 
    129 S. Ct. 2052
    sentencing range that has subsequently been lowered by the Sentencing Commission’ . . .
    .” 100 F.3d at 871 (quoting 18 U.S.C. § 3582(c)(2)). In that case, we concluded the
    district court “should have dismissed Mr. Trujeque’s motion without considering its
    merits.” Id.
           In Cobb we distinguished Trujeque’s sentence, which was “well below the low
    end of his [statutory guideline] range” and was specifically controlled by Rule
    11(c)(1)(C). 584 F.3d at 983. Cobb’s plea agreement did not require a specific term of
    imprisonment; instead it identified a guideline sentencing range, which the parties agreed
    was appropriate. It was, accordingly, “tied to the guidelines at every step.” Id. We said
    a district court has the authority under 18 U.S.C. § 3582(c)(2) to reduce a sentence
    imposed pursuant to a Rule 11(c)(1)(C) plea agreement “where . . . the sentence was
    based at least in part on the then-applicable sentencing range.” Id. at 985.
           Grayson relies on Cobb, arguing “the District Court had authority to reduce [his]
    sentence, even though it was imposed pursuant to a plea agreement.” (Appellant’s
    Opening Br. at 3.) But this case is more like Trujeque because the court was bound to
    impose the 180-month sentence stipulated to in the plea agreement; it was not merely
    constrained to impose a sentence within the appropriate guideline range as in Cobb. The
    district court specifically acknowledged the term of imprisonment was not framed by the
    guidelines, saying: “I’ve now accepted the plea agreement without conditions[;] I’ve
    accepted the binding provisions. I have bound myself to the terms of this binding plea
    agreement, and I must sentence you in accordance with its provisions[—] a term of 180
    months concurrent as to Counts One, Two and Three.” (R. Supp. Vol. I at 61.) The
    requirement of 18 U.S.C. § 3582(c)(2) — that the sentence sought to be reduced was
    originally “based on” a subsequently lowered guideline range — was not satisfied.
    B. “Subsequently” Lowered
           The district court was precluded from granting the reduction for another, equally
    persuasive, reason. Amendment 706 went into effect on November 1, 2007. United
    States v. Rhodes, 
    549 F.3d 833
    , 835 (10th Cir. 2008), cert. denied, 
    129 S. Ct. 2052
    (2009). Grayson’s crimes were committed in May 2008, he was indicted on July 24,
    2008, he pled guilty on October 17, 2008, and he was sentenced on January 8, 2009.
    Amendment 706 was in effect throughout. He was not sentenced to a term of
    imprisonment based on a guideline range which was “subsequently” lowered by the
    Sentencing Commission. See United States v. Darton, 
    595 F.3d 1191
    , 1195 (10th Cir.)
    (where “Amendment 706 would not lower the offense level or criminal-history category
    of [the defendant] . . . [he] cannot say that he has been sentenced to a term of
    imprisonment based on a sentencing range that has subsequently been lowered by the
    Sentencing Commission.”) (quotations omitted), cert. denied, --- S. Ct. ---,
    2010 WL 1991552
           We DENY Grayson’s motion for leave to proceed on appeal in forma pauperis.
    To be permitted in forma pauperis status “an appellant must show a financial inability to
    pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the
    law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991) (emphasis added). As discussed above, Grayson has not
    presented a reasoned, non-frivolous argument in support of the issues raised on appeal.
    He must immediately pay the filing and docket fees in full.
                                             Entered by the Court:
                                             Terrence L. O’Brien
                                             United States Circuit Judge