United States v. Clayton ( 2004 )


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  •                                                                              F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  MAR 3 2004
                                       TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk
    
     UNITED STATES OF AMERICA,
    
              Plaintiff-Appellee,
    
     v.                                                       No. 03-7095
                                                              (E.D. Okla.)
     HAROLD GLEN CLAYTON,                                (D.Ct. No. 98-CR-25-S)
    
              Defendant-Appellant.
    
    
                                    ORDER AND JUDGMENT *
    
    
    Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
    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)(2); 10th Cir. R. 34.1(G). The case is
    
    therefore ordered submitted without oral argument.
    
    
    
    
          *
              This order and judgment is not binding precedent except under the doctrines of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.
           Harold G. Clayton, a litigant and federal inmate at a correctional facility in
    
    Oklahoma appearing pro se, appeals the district court’s dismissal of his motion,
    
    filed pursuant to 18 U.S.C. § 3582(c)(2), seeking a reduction of his 324-month
    
    sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
    
    
    
           Mr. Clayton pled guilty, under Federal Rule of Criminal Procedure
    
    11(a)(2), to conspiracy to possess with intent to distribute methamphetamine in
    
    violation of 21 U.S.C. § 846; to a money laundering conspiracy in violation of 18
    
    U.S.C. § 1956(h); and to unlawful removal of vehicle identification numbers in
    
    violation of 18 U.S.C. § 511(a). See United States v. Clayton, 
    201 F.3d 449
    , 
    1999 WL 1079627
     at *1 (10th Cir. Nov. 30, 1999) (unpublished opinion) (Clayton I). 1
    
    The district court accepted the plea and sentenced him to 324 months
    
    imprisonment on the conspiracy to possess count, sixty months on the vehicle
    
    
    
           1
             Although Mr. Clayton entered into a conditional Rule 11 plea agreement,
    nothing in the record or briefs suggests the plea agreement contained a stipulated term of
    sentence. See also Clayton I, at *3 (indicating Mr. Clayton entered into a verbal plea
    presented to the court, in which the government did not make any promises on the
    sentence term). As a result, Mr. Clayton’s sentence of 324 months appears to be based on
    the United States Sentencing Guidelines (Sentencing Guidelines), and not on any plea
    agreement as to the term of sentence. See United States v. Trujeque, 
    100 F.3d 869
    , 870-
    71 (10th Cir. 1996) (holding the federal courts lack jurisdiction to consider a § 3582(c)(2)
    motion when the term of sentence is stipulated to in a valid Rule 11 plea agreement and
    not based on a sentencing range subsequently lowered by the United States Sentencing
    Commission (Sentencing Commission)).
    
    
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    identification count, and 240 months on the money laundering conspiracy count,
    
    all to run concurrently. This court affirmed Mr. Clayton’s conviction on direct
    
    appeal. See Clayton I, at *4. Thereafter, Mr. Clayton filed a 28 U.S.C. § 2255
    
    motion to vacate, set aside, or correct his sentence pursuant to Apprendi v. New
    
    Jersey, 
    530 U.S. 466
     (2000), on grounds his indictment did not include a drug
    
    quantity amount. See United States v. Clayton, 
    2002 WL 31124416
     at *1 (10th
    
    Cir. Sept. 26, 2002) (unpublished opinion) (Clayton II). The district court denied
    
    the motion; this court affirmed, concluding his Apprendi claims were barred, in
    
    part, under United States v. Mora, 
    293 F.3d 1213
    , 1218-19 (10th Cir.), cert.
    
    denied, 
    537 U.S. 961
     (2002), which determined Apprendi is not retroactively
    
    applicable to habeas petitions. See Clayton II, at *1.
    
    
    
          Mr. Clayton then filed the instant § 3582(c)(2) motion to modify his 324-
    
    month sentence. He argued Sentencing Commission Amendment 613 to the
    
    sentencing guidelines reduced the sentencing range applicable to his term of
    
    imprisonment. Even though he did not cite Apprendi in support of his appeal, Mr.
    
    Clayton also renewed his argument, raised during his § 2255 proceeding, that his
    
    sentence must be reduced to the twenty-year maximum sentence prescribed in 21
    
    U.S.C. § 841(b)(1)(C) because his indictment did not include a drug quantity
    
    amount.
    
    
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           The district court denied Mr. Clayton’s § 3582(c)(2) motion, explaining
    
    Amendment 613 does not lower the applicable guideline because it only addresses
    
    the issue of whether admissions, made by a defendant during a guilty plea
    
    hearing, can be considered a stipulation under Sentencing Guideline § 1B1.2. 2
    
    The district court also explained § 3582(c)(2) can only apply if Mr. Clayton’s
    
    term of imprisonment is based on a sentencing range subsequently reduced by the
    
    Sentencing Commission, and the reduction is consistent with the applicable policy
    
    statement. The district court noted Sentencing Guideline § 1B1.10(c), which
    
    contains the applicable policy statement, explicitly states which amendments are
    
    covered, and does not include Amendment 613, thereby precluding Mr. Clayton
    
    relief. See U.S.S.G. § 1B1.10 (c), and cmt. n.2. The district court also rejected
    
    Mr. Clayton’s Apprendi drug quantity challenge, pointing out this court
    
    previously rejected it on appeal of his § 2255 action, and Mr. Clayton improperly
    
    brought his Apprendi claim under § 3582(c)(2), which applies only to situations
    
    where a sentencing range is lowered.
    
    
    
    
           2
             Amendment 613 states that a factual statement or stipulation contained in a
    written or oral plea agreement is only considered a stipulation if both the defendant and
    the government explicitly agree. U.S.S.G., App. C, Vol. II, at 115-16.
    
    
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          Mr. Clayton appeals the district court’s decision, making the same or
    
    similar argument as in his § 3582(c)(2) motion, claiming Amendment 613 applies
    
    for the purpose of reducing his sentence from 324 months to the twenty-year
    
    maximum prescribed by 21 U.S.C. § 841(b)(1)(C). In so doing, he contends
    
    Amendment 613 should be given retroactive application because it is a
    
    “clarifying” amendment rather than a substantive amendment, and the maximum
    
    statutory sentence of twenty years must be applied because neither his indictment
    
    nor his plea agreement included a drug quantity amount. He also contends he
    
    never raised an Apprendi argument before the district court.
    
    
    
          We review de novo the district court’s interpretation of a statute or the
    
    sentencing guidelines. United States v. Smartt, 
    129 F.3d 539
    , 540 (10th Cir.
    
    1997). When a “motion for sentence reduction is not a direct appeal or a
    
    collateral attack under 28 U.S.C. § 2255, the viability of [the] motion depends
    
    entirely on 18 U.S.C. § 3582(c).” Id. (quotation marks, citation, and alteration
    
    omitted). Section 3582(c) allows the court to modify a sentence in only three
    
    limited circumstances: 1) on motion of the Director of the Bureau of Prisons if
    
    special circumstances exist; 2) if otherwise expressly permitted by statute or
    
    Federal Rule of Criminal Procedure 35; or 3) if the sentencing range is
    
    subsequently lowered by the Sentencing Commission. Id. at 540-41. As
    
    
                                             -5-
    previously noted, Mr. Clayton’s motion is dependent on the last listed
    
    circumstance – a reduction of the sentencing range applicable to him.
    
    
    
          Having reviewed the record and briefs on appeal, we conclude the district
    
    court did not err in denying Mr. Clayton’s motion to modify his sentence under
    
    § 3582(c)(2). As the district court aptly explained, Amendment 613 is not listed
    
    in § 1B1.10(c), and therefore a reduction of his sentence under § 3582(c)(2) is
    
    “not authorized.” See Torres-Aquino, 
    334 F.3d 939
    , 941 (10th Cir. 2003). We
    
    also reject Mr. Clayton’s contention on appeal that he is not raising an Apprendi-
    
    type argument. Regardless of how he wishes to characterize it, Mr. Clayton
    
    continues to argue his sentence should be reduced to twenty years under 21
    
    U.S.C. § 841 because his indictment and plea agreement did not contain a drug
    
    quantity amount. His argument is unpersuasive for several reasons. First, as the
    
    district court pointed out, this court previously rejected his claim during the
    
    appeal of his § 2255 action. See Clayton II, at *2. Second, as the district court
    
    properly concluded, the argument raised by Mr. Clayton concerning Amendment
    
    613 is not one which relates to the lowering of a sentence range as required by
    
    § 3582(c)(2). Moreover, dismissal of his motion on such grounds is consistent
    
    with other circuit court holdings that Apprendi-type claims cannot be brought
    
    under 18 U.S.C. § 3582(c)(2) for modification of a sentence, because they do not
    
    
                                              -6-
    relate to a lowering of sentence ranges. See United States v. McBride, 
    283 F.3d 612
    , 615-16 & n.2 (3d Cir.) (relying on similar holdings by the Second, Fourth,
    
    and Seventh Circuits, and various district courts, that Apprendi claims may not be
    
    raised under § 3582(c)(2).), cert. denied, 
    537 U.S. 864
     (2002). Finally, Mr.
    
    Clayton’s own pleadings contradict his contention on appeal that his plea
    
    agreement did not contain a drug quantity amount. Specifically, Mr. Clayton
    
    admits in one district court pleading that the government and his counsel agreed
    
    to a total drug amount of 185.5 pounds of methamphetamine for the purpose of
    
    calculating his sentence under the Sentencing Guidelines. Under the
    
    circumstances presented, the drug quantity was explicitly agreed to, despite Mr.
    
    Clayton’s later description of events.
    
    
    
          We also reject Mr. Clayton’s contention Amendment 613 should be given
    
    retroactive application because it is a “clarifying” amendment rather than a
    
    substantive amendment.
    
          The question of whether an amendment to the guidelines is clarifying
          or substantive goes to whether a defendant was correctly sentenced
          under the guidelines in the first place, not to whether a correct
          sentence has subsequently been reduced by an amendment to the
          guidelines and can be modified in a proceeding under § 3582(c)(2).
    
    Torres-Aquino, 334 F.3d at 941. As a result, the clarifying question raised by Mr.
    
    Clayton may not be reached in addressing his § 3582 motion, or his appeal of its
    
    
                                             -7-
    denial. Id.
    
    
    
          Thus, for substantially the same reasons stated by the district court in its
    
    Order filed August 22, 2003, and reasons stated herein, we AFFIRM the district
    
    court’s decision denying a sentence reduction under 18 U.S.C. § 3582(c)(2).
    
    
    
                                           Entered by the Court:
    
                                           WADE BRORBY
                                           United States Circuit Judge
    
    
    
    
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