United States v. Burks ( 2008 )


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  •                                                                         FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                     December 5, 2008
                                       TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
    
     UNITED STATES OF AMERICA,
    
              Plaintiff - Appellee,
                                                             No. 08-5064
     v.                                            (D.C. No. 01-CR-00028-TCK-1)
                                                             (N.D. Okla.)
     LANCE LAMAR BURKS,
    
              Defendant - Appellant.
    
    
                                  ORDER AND JUDGMENT *
    
    
    Before TACHA, KELLY, and McCONNELL, Circuit Judges. **
    
    
          Defendant-Appellant Lance Lamar Burks appeals from the district court’s
    
    denial of his pro se motion for reduction of sentence pursuant to 18 U.S.C.
    
    § 3582(c)(2) and Amendment 706 to the Sentencing Guidelines. In 2001, Mr.
    
    Burks pled guilty to possession with intent to distribute five grams or more of
    
    cocaine base (crack), 21 U.S.C. § 841(a)(1), (b)(1)(B), and was sentenced to 240
    
    
          *
            This order and judgment is not binding precedent, except under the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.
          **
             After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    months’ imprisonment and four years’ supervised release in accordance with a
    
    plea agreement. Amendment 706 generally adjusted downward by two levels the
    
    base offense level applicable to crack cocaine offenses. United States v. Sharkey,
    
    
    543 F.3d 1236
    , 1237 (10th Cir. 2008). The district court denied Mr. Burks’
    
    motion on the merits, concluding that he was not sentenced based on a Sentencing
    
    Guidelines range which had subsequently been lowered because (1) his base
    
    offense level would have remained the same given the multiple drug equivalency
    
    procedures, and (2) a higher career offender offense level applied, U.S.S.G. §
    
    4B1.1(b). 1 See Sharkey, 543 F.3d at 1238-39 (affirming the denial of a
    
    § 3582(c)(2) motion because Amendment 706 had no effect on the career offender
    
    guidelines applicable to defendant).
    
          On appeal, Mr. Burks argues that the district court erred in concluding it
    
    had no jurisdiction because he had been sentenced as a career offender. He also
    
    argues that the district court abused its discretion in not reducing his sentence.
    
    Mr. Burks contends that the district court did not rely on career offender status in
    
    sentencing him, rather he was sentenced pursuant to a plea agreement. Aplt. Br.
    
    at 3. He also argues that he should be resentenced with an offense level of 24,
    
          1
             Mr. Burks’ base offense level was 26, with a two-level enhancement for
    possession of a firearm, which resulted in an adjusted offense level of 28. III R.
    (PSR) at 7. However, because he was classified as a career offender, his adjusted
    offense level was 34, and he received a two-level downward adjustment for
    acceptance of responsibility, resulting in a total offense level of 32 and criminal
    history of VI. Id. at 8, 12. The guideline range was 210 to 262 months. Id. at
    14.
    
                                             -2-
    criminal history category VI, with a sentencing range of 100 to 125 months. Id.
    
    at 5.
    
            We cannot agree. The district court denied the motion on the merits, not on
    
    the basis of lack of jurisdiction. Although the district court was correct that
    
    Amendment 706 is applicable because the offense involved crack cocaine, it does
    
    not apply here because Mr. Burks was sentenced to 240 months’ imprisonment
    
    based upon a specific, agreed-upon sentence. 2 Fed. R. Crim. P. 11(c)(1)(C). Such
    
    a sentence rendered the district court without jurisdiction to consider the §
    
    3582(c)(2) motion, and Mr. Burks’ motion should have been dismissed for lack of
    
    jurisdiction. See United States v. Trujeque, 
    100 F.3d 869
    , 871 (10th Cir. 1996);
    
    see also United States v. Harper, 282 F. App’x 727, 729 (10th Cir. 2008)
    
    (unpublished). Therefore, we remand with instructions to dismiss the motion for
    
    lack of jurisdiction.
    
                                            Entered for the Court
    
    
                                            Paul J. Kelly, Jr.
                                            Circuit Judge
    
    
    
    
            2
             Even if that were not the case, the sentence is the product of the career
    offender guidelines, and the motion was properly denied. See Sharkey, 543 F.3d
    at 1239.
    
                                             -3-
    

Document Info

DocketNumber: 08-5064

Filed Date: 12/5/2008

Precedential Status: Non-Precedential

Modified Date: 12/21/2014