United States v. Tyner ( 2008 )


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  •                                                                    FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                December 12, 2008
                                 TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                   Clerk of Court
    
     UNITED STATES OF AMERICA,
    
                 Plaintiff-Appellee,                    No. 08-3161
     v.                                                 (D. Kansas)
     TYRONE D. TYNER,                        (D.C. No. 2:06-20043-06-JWL-6)
    
                 Defendant-Appellant.
    
    
    
                            ORDER AND JUDGMENT *
    
    
    Before HENRY, Chief Judge, ANDERSON, and BALDOCK, Circuit
    Judges.
    
    
    
          After examining the briefs and appellate record, this panel has
    
    determined unanimously that oral argument would not materially assist in
    
    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.
    
          Tyrone D. Tyner appeals the district court’s refusal to reduce his
    
    ten-year sentence for his drug conspiracy conviction. He argues that the
    
    
    
          *
           This order and judgment is not binding precedent except under the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.
    district court failed to rely on certain amendments to the Sentencing
    
    Guidelines that would have resulted in a reduced sentence. He also argues
    
    that once the district court applied the amendments correctly, it should also
    
    have reevaluated his sentence under United States v. Booker, 
    543 U.S. 220
    
    (2005). Reviewing de novo, we affirm Mr. Tyner’s sentence.
    
                                 I. BACKGROUND
    
          Mr. Tyner pleaded guilty to one count each of (1) conspiracy to
    
    possess with intent to distribute fifty grams or more of methamphetamine, in
    
    violation of 21 U.S.C. §§ 846 & 841(a)(1); (2) distribution of
    
    methamphetamine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C); and
    
    (3) possession of a firearm by an unlawful user of a controlled substance, in
    
    violation of 18 U.S.C. § 922(g)(3). The presentence report calculated Mr.
    
    Tyner’s adjusted offense level to be 29, with a criminal history category of
    
    IV, resulting in a sentencing guidelines range of 121 to 151 months. Mr.
    
    Tyner was subject to a minimum mandatory sentence of 120 months
    
    pursuant to 21 U.S.C. § 841(b)(1)(A), and on June 18, 2007, the district
    
    court sentenced Mr. Tyner to 120 months’ imprisonment, followed by five
    
    years’ supervised release.
    
          After the entry of his conviction and his sentence, Mr. Tyner filed in
    
    the district court a pro se Motion to Reduce Sentences Pursuant to 18 U.S.C.
    
    § 3582(c)(2) to Modify Term of Imprisonment and a Memorandum in
    
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    support thereof. Mr. Tyner contended that the district court should have
    
    reduced his sentence under USSG Amendments 591, 599, and 709. 1
    
          In its Memorandum and Order addressing the motion to reduce the
    
    sentence, as to Amendments 591 and 599, the district court agreed with Mr.
    
    Tyner that USSG § 1B.10(c) explicitly lists these as amendments that a
    
    court should apply retroactively. Rec. doc. 288, at 2 (Mem. and Order, filed
    
    June 2, 2008). However, the district court noted that these two amendments
    
    became effective on November 1, 2000, and thus were already in effect and
    
    considered by the district court when it sentenced Mr. Tyner. As to
    
    Amendment 709, the district court concluded this amendment was not listed
    
    in USSG § 1B1.10(c) and was not, therefore, retroactive, such that it did not
    
    authorize modification under § 3582(c)(2). As a result, the district court
    
    denied the motion. Mr. Tyner now appeals.
    
    
    
    
          1
           Undoubtedly contributing to Mr. Tyner’s confusion, the
    Government’s response to Mr. Tyner’s pro se motion focused exclusively on
    Amendment 706, which concerns “crack” cocaine, and makes no reference
    to any argument Mr. Tyner actually raised concerning Amendments 591,
    599, and 709. Rec. doc. 279 (Govt’s Response to Defendant’s Motion to
    Reduce Sentence) (“The defendant’s motion should be denied for the simple
    reason that his case did not involve cocaine base (‘crack’), and he was not
    sentenced pursuant to the portions of Section 2D1.1 altered by Amendment
    706.”). See Rec. doc. 280 (Defendant’s pro se reply styled as a “Motion to
    Traverse”) (“The government’s argument is flawed, and has no basis in this
    proceeding regarding defendant [who] was convicted [for the controlled
    substance] methamphetamine and not “crack” cocaine base.”).
    
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                                  II. DISCUSSION
    
          “We review de novo the district court’s interpretation of a statute or
    
    the sentencing guidelines.” United States v. Smart, 
    129 F.3d 539
    , 540 (10th
    
    Cir. 1997) (quotation marks and citation omitted). 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, including: 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. Mr. Tyner’s motion is premised on the last circumstance: a
    
    reduction of the sentencing range applicable to him. We construe liberally
    
    pleadings filed by pro se litigants. Haines v. Kerner, 
    404 U.S. 519
    , 520
    
    (1972) (per curiam); Hall v. Bellmon, 
    935 F.2d 1106
    , 1110 (10th Cir. 1991).
    
          Section 3582(c)(2) of U.S.C. Title 18 provides as follows:
    
          (2) in the case of a defendant who has been sentenced to a term of
          imprisonment based on a sentencing range that has subsequently
          been lowered by the Sentencing Commission pursuant to 28
          U.S.C.§ 994(o), upon motion of the defendant or the Director of
          the Bureau of Prisons, or on its own motion, the court may reduce
          the term of imprisonment, after considering the factors set forth in
          section 3553(a) to the extent that they are applicable, if such a
    
                                          -4-
          reduction is consistent with applicable policy statements issued by
          the Sentencing Commission.
    
    18 U.S.C. § 3582(c)(2) (emphasis supplied).
    
          Pursuant to the Sentencing Commission’s policy statement on
    
    retroactive reduction of sentences:
    
          In a case in which a defendant is serving a term of imprisonment,
          and the guideline range applicable to that defendant has
          subsequently been lowered as a result of an amendment to the
          Guidelines Manual listed in subsection (c) below, the court may
          reduce the defendant’s term of imprisonment as provided by 18
          U.S.C. § 3582(c)(2), and any such reduction in the defendant’s
          term of imprisonment shall be consistent with this policy
          statement.
    
    U.S.S.G. § 1B1.10(a)(1) (emphasis supplied). Subsection (c) states:
    
          Covered Amendments.--Amendments covered by this policy
          statement are listed in Appendix C as follows: 126, 130, 156, 176,
          269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499,
          505, 506, 516, 591, 599, 606, 657, 702, 706 as amended by 711,
          and 715.
    
          Here, the district court concluded Amendments 591 and 599 were
    
    inapplicable because they had already taken effect and had been considered
    
    by the court, and that Amendment 709, which concerns criminal history
    
    calculations, was inapplicable because it was not made retroactive. See 18
    
    U.S.C. § 3582(c)(2).
    
          We agree with the district court’s apt reasoning. Amendments 591 and
    
    599 became effective on November 1, 2000, and were then part of the
    
    guidelines that the district court considered when it sentenced Mr. Tyner.
    
                                          -5-
    Thus, no reduction is applicable.
    
          Second, Amendment 709 is not listed in § 1B 1.10(c). Thus, it is not
    
    retroactive and the district court did not have authority to reduce Mr.
    
    Tyner’s sentence based upon an application of Amendment 709. Even if
    
    Amendment 709, which became effective on November 1, 2007, applied
    
    retroactively, however, Mr. Tyner’s sentence would not be reduced because
    
    his advisory guideline sentencing range was based upon not his criminal
    
    history category but a statutory-minimum sentence. See 21 U.S.C. §
    
    841(b)(1)(A) (listing penalties for a violation of 21 U.S.C. § 841(a)(1) and
    
    requiring “term of imprisonment [of] not . . . less than ten years”).
    
    Accordingly, after a review of the record and the parties’ briefs, we affirm
    
    the district court’s denial of Mr. Tyner’s § 3582(c)(2) motion.
    
                                  III. CONCLUSION
    
          Accordingly, we AFFIRM Mr. Tyner’s sentence.
    
    
                                                 Entered for the Court,
    
    
                                                 Robert H. Henry
                                                 Circuit Judge
    
    
    
    
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Document Info

DocketNumber: 08-3161

Filed Date: 12/12/2008

Precedential Status: Non-Precedential

Modified Date: 12/21/2014