United States v. Powell ( 2008 )


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  •                                                                            FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
    
                         UNITED STATES COURT OF APPEALS                   October 8, 2008
    
                                FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                            Clerk of Court
    
    
        UNITED STATES OF AMERICA,
    
                    Plaintiff-Appellee,
    
        v.                                                    No. 08-1164
                                                   (D.C. No. 1:96-CR-00321-WYD-1)
        STANLEY DOUGLAS POWELL,                                (D. Colo.)
    
                    Defendant-Appellant.
    
    
                                 ORDER AND JUDGMENT *
    
    
    Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
    
    
    
             In his notice of appeal, Stanley Douglas Powell states that he is appealing
    
    from the order entered by the district court on April 24, 2008, denying his motion
    
    under 18 U.S.C. § 3582(c)(2) to reduce the 188-month federal sentence that he
    
    received after being convicted by a jury on four counts of possession with the
    
    
    
    
    *
           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    not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    intent to distribute crack cocaine. 1 In the pro se briefs that he has submitted to
    
    this court, however, Mr. Powell has made no effort to explain how the district
    
    court abused its discretion in refusing to reduce his sentence. Instead, he has
    
    focused exclusively on issues unrelated to the sentence-reduction proceeding. We
    
    have jurisdiction under 28 U.S.C. § 1291 to review the district court’s denial of
    
    Mr. Powell’s § 3582(c)(2) motion. See United States v. Trujeque, 
    100 F.3d 869
    ,
    
    869, 870-71 (10th Cir. 1996). Because Mr. Powell has failed to challenge the
    
    district court’s disposition of his motion, we affirm the district court’s denial of
    
    Mr. Powell’s motion for reduction of sentence; we dismiss the balance of this
    
    appeal for lack of jurisdiction.
    
          In his motion for reduction of sentence, Mr. Powell argued that he is
    
    entitled to a reduced sentence based on the recent amendments to the sentencing
    
    guidelines that apply to federal crack-cocaine convictions. Specifically, he
    
    argued that he was entitled to have his base offense level reduced from 32 to 30.
    
    After appointing counsel for Mr. Powell and receiving submissions from Mr.
    
    Powell’s counsel, the United States Attorney, and the United States Probation
    
    Department indicating that Mr. Powell was in fact eligible for a discretionary
    
    
    
    
    1
           This court affirmed Mr. Powell’s convictions on direct appeal. See United
    States v. Powell, No. 97-1439, 
    1998 WL 794973
     (10th Cir. Nov. 16, 1998).
    
                                              -2-
    reduction in his sentence under the amended sentencing guidelines, 2 the district
    
    court denied Mr. Powell’s motion. The court explained:
    
              On November 1, 2007, the United States Sentencing
          Commission amended the applicable guideline in this case. . . .
    
                 In the instant case, the amendment lowers the base offense
          [level] to 30. No other guideline applications were made in the
          original sentencing, so the final offense level in this case is 30.
          At the Defendant’s established criminal history category of V, this
          results in a new sentencing range of 151-188 months. This is a
          reduction from the previously applied range of 188-235 months.
    
                 Consistent with 18 U.S.C. § 3582(c)(2), the court shall
          consider the factors set forth in 18 U.S.C. § 3553(a) in determining:
          (I) whether a reduction in the defendant’s term of imprisonment is
          warranted; and (II) the extent of such a reduction . . . . In addition,
          the court is to consider (1) Public safety (the nature and seriousness
          of the danger to any person or the community that may be posed by a
          reduction in the defendant’s term of imprisonment) and
          (2) Post-Sentencing Conduct (the conduct of the defendant that
          occurred after the imposition of the original term of imprisonment).
    
                 After reviewing the applicable law and the [Probation
          Department’s amended presentence investigation report], I find that a
          reduction in the Defendant’s term of imprisonment is unwarranted.
          With respect to the issue of public safety, I note that at the time the
          instant offense was committed, the Defendant had prior felony
          convictions for second degree murder, theft, conspiracy to commit
          theft, mail fraud, attempted escape, and possession with intent to
          defraud. Importantly, while serving the sentence on the instant
          offense, the Defendant incurred a conviction for one count of
          Knowingly Causing Threatening Communications to be Mailed, in
          violation of 18 U.S.C. § 876(c) in this Court (Case Number
    
    
    2
            Although the Probation Department’s amended presentence investigation
    report is not in the record before this court, the district court referred to the report
    in its order denying Mr. Powell’s motion for reduction of sentence, and we do not
    need the report to decide this appeal.
    
                                              -3-
          04-cr-00051). Specifically, the Defendant threatened to have his
          previous attorney’s “head cut off.” On September 10, 2004, the
          Defendant was sentenced to 27 months imprisonment, consecutive to
          the sentence imposed in the instant offense.
    
                 Based on my consideration of the factors set forth in 18 U.S.C.
          § 3553(a), particularly the public safety factor, I find that in my
          discretion, the Defendant’s sentence should not be reduced.
    
    R., Doc. 270 at 2-4.
    
          In the pro se briefs that he has submitted to this court, 3 Mr. Powell has not
    
    advanced a single argument challenging the district court’s denial of his motion
    
    for reduction of sentence. As a result, Mr. Powell has forfeited his right to have
    
    this court determine whether the district court abused its discretion in denying the
    
    motion. See Garrett v. Selby Connor Maddux & Janer, 
    425 F.3d 836
    , 840
    
    (10th Cir. 2005) (affirming judgment below because appellant’s pro se briefs
    
    contained no argument of substance); see also Robey v. Shapiro, Marianos &
    
    Cejda, LLC, 
    434 F.3d 1208
    , 1213 (10th Cir. 2006) (appellant waived his right to
    
    challenge dismissal of state-law claims when he failed to argue that district court
    
    abused its discretion in refusing to exercise supplemental jurisdiction); LifeWise
    
    Master Funding v. Telebank, 
    374 F.3d 917
    , 927 n.10 (10th Cir. 2004) (appellant
    
    waived its right to appeal rulings of district court that it did not substantively
    
    
    
    3
          The district court permitted Mr. Powell’s appointed counsel to withdraw
    from his representation of Mr. Powell after counsel informed the court that
    Mr. Powell no longer wanted counsel to represent him. Mr. Powell is therefore
    proceeding in this appeal pro se.
    
                                              -4-
    address in its opening brief); Adler v. Wal-Mart Stores, Inc., 
    144 F.3d 664
    , 679
    
    (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
    
    waived[.]”). 4
    
          Mr. Powell argues in his briefs that the district court lacked subject-matter
    
    jurisdiction in his criminal case because he was convicted of a crime that was not
    
    charged in the grand jury’s indictment. See Aplt. Opening Br. at 2 (“The
    
    Appellant was tried, convicted and sentenced for a crime that was not charged in
    
    his indictment. . . . The district court had absolutely no authority to sentence the
    
    Appellant for a crime ‘distribution’ that was not charged in his indictment. . . .
    
    The district court lacked subject matter jurisdiction in criminal action
    
    No. 96-CR-00321WYD.”); see also Aplt. Reply Br. at 2 (requesting an
    
    explanation why conduct of government and district court “did not amount to a
    
    constructive amendment of the Appellant’s indictment”). Mr. Powell also
    
    
    
    4
           Although “[a] pro se litigant’s pleadings are to be construed liberally and
    held to a less stringent standard than formal pleadings drafted by lawyers,” Hall
    v. Bellmon, 
    935 F.2d 1106
    , 1110 (10th Cir. 1991), “[t]his court has repeatedly
    insisted that pro se parties follow the same rules of procedure that govern other
    litigants.” Nielsen v. Price, 
    17 F.3d 1276
    , 1277 (10th Cir. 1994) (internal
    quotation marks omitted). Thus, while we make some allowances for “the
    [pro se] plaintiff’s failure to cite proper legal authority, his confusion of various
    legal theories, his poor syntax and sentence construction, or his unfamiliarity with
    pleading requirements,” Hall, 935 F.2d at 1110, “the court cannot take on the
    responsibility of serving as the litigant’s attorney in constructing arguments and
    searching the record.” Garrett, 425 F.3d at 840 (citing Hall, 935 F.2d at 1110
    (“[W]e do not believe it is the proper function of the district court to assume the
    role of advocate for the pro se litigant.”)).
    
                                             -5-
    contends that he was “clearly . . . the victim of ongoing fraud on the court.” Aplt.
    
    Opening Br. at 3. These arguments are beyond the scope of our present appellate
    
    jurisdiction in this proceeding, however, because they amount to substantive
    
    challenges to Mr. Powell’s conviction and sentence. As such, they can be
    
    pursued only in accordance with the provisions of 28 U.S.C. §§ 2244 and 2255
    
    governing second or successive § 2255 motions. 5 See Caravalho v. Pugh, 
    177 F.3d 1177
    , 1178 (10th Cir. 1999) (28 U.S.C. § 2255 is exclusive remedy for
    
    challenges to validity of a federal conviction or sentence unless that remedy is
    
    inadequate or ineffective). Further, “[t]hat [Mr. Powell] may be barred from
    
    filing a second or successive motion pursuant to § 2255 in the sentencing court
    
    does not establish that the remedy provided in § 2255 is inadequate or
    
    ineffective.” 6 Id.
    
    5
           We note that Mr. Powell has unsuccessfully pursued a prior § 2255 motion
    in the district court and this court, see United States v. Powell, No. 00-1075,
    
    2000 WL 1187674
     (10th Cir. Aug. 22, 2000), and that he has also previously
    sought relief in the district court under Fed. R. Civ. P. 60 and 28 U.S.C. § 2241,
    see United States v. Powell, No. 04-CV-01616, 
    2006 WL 1707969
     (D. Colo. June
    20, 2006) (Rule 60) and Powell v. Davis, 07-CV-02289-BNB, 
    2007 WL 4442400
    (D. Colo. Dec. 14, 2007) (§ 2241).
    6
          Given the limited nature of the proceedings before the district court and
    Mr. Powell’s failure to acknowledge or make any effort to address the manifest
    impediments to his seeking habeas relief at this time under § 2255, we decline to
    construe his claims in this appeal as a motion under § 2244(b)(3)(A) for
    authorization to file a second or successive § 2255 motion in the district court.
    Consequently, Mr. Powell must file a separate proceeding in this court to obtain
    such authorization if he decides at any time in the future to pursue a second or
    successive § 2255 motion, and we express no opinion regarding his chances of
                                                                           (continued...)
    
                                             -6-
          Finally, the time for filing a challenge to the indictment under Fed. R.
    
    Crim. P. 12(b)(3)(B) has long since passed. See United States v. Valadez-
    
    Camarena, 
    402 F.3d 1259
    , 1261 (10th Cir. 2005) (defendant’s motion under Rule
    
    12(b)(3)(B) was untimely when defendant’s case was no longer “pending”
    
    because it had been “reduced to judgment, affirmed on direct appeal, and rejected
    
    for certiorari review”).
    
          We AFFIRM the district court’s denial of Mr. Powell’s motion for
    
    reduction of sentence and DISMISS the balance of this appeal for lack of
    
    jurisdiction.
    
    
                                                        Entered for the Court
    
    
                                                        Harris L Hartz
                                                        Circuit Judge
    
    
    
    
    6
     (...continued)
    obtaining such authorization.
    
                                            -7-