United States v. Graham ( 2008 )


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  •                                                                        FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
    
                                                                    December 22, 2008
                         UNITED STATES COURT OF APPEALS
                                                      Elisabeth A. Shumaker
                                                                        Clerk of Court
                                FOR THE TENTH CIRCUIT
    
    
    
    
        UNITED STATES OF AMERICA,
    
                    Plaintiff-Appellee,
    
        v.                                                  No. 08-8041
                                                  (D.C. No. 2:05-CR-00078-ABJ-2)
        GREGORY E. GRAHAM,                                    (D. Wyo.)
    
                    Defendant-Appellant.
    
    
                                ORDER AND JUDGMENT *
    
    
    Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
    
    
    
             Defendant-appellant Gregory E. Graham, a federal prisoner proceeding
    
    pro se, appeals the district court’s denial of his motion filed pursuant to 18 U.S.C.
    
    § 3582(c)(2) to modify his sentence based on Amendment 706 to the United
    
    States Sentencing Guidelines (“Guidelines”). Mr. Graham may not seek a
    
    sentence reduction under § 3582(c), however, because his sentence was part of a
    
    
    *
           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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    plea agreement specifying a term of imprisonment pursuant to Rule 11(c)(1)(C) of
    
    the Federal Rules of Criminal Procedure. Accordingly, his case is remanded to
    
    the district court with instructions to dismiss his motion for lack of jurisdiction.
    
                                         Background
    
          The facts leading to Mr. Graham’s arrest and eventual plea agreement are
    
    described in his direct criminal appeal. United States v. Graham, 
    466 F.3d 1234
    ,
    
    1235-37 (10th Cir. 2006). Therefore, we provide only a brief background to
    
    frame the issues presented in the instant appeal.
    
          Mr. Graham and several others were charged with conspiracy to possess
    
    and distribute more than 1.5 kilograms of cocaine base (Count 1), and
    
    Mr. Graham was also charged with distribution of 7.1 grams of cocaine base
    
    (Count 5). The case proceeded to trial. After six days, during which almost all of
    
    the government’s evidence was presented, Mr. Graham decided to enter a guilty
    
    plea to Count 5–the distribution charge–by entering an oral plea agreement that
    
    included a stipulated twenty-five year sentence. See id. at 1235. His conviction
    
    and sentence were affirmed on appeal. Id. at 1241.
    
          Thereafter, Mr. Graham filed a motion to reduce his sentence. The district
    
    court denied the motion, concluding that the amount of crack cocaine attributable
    
    to Mr. Graham made him ineligible for relief under Amendment 706.
    
    Mr. Graham appeals.
    
    
    
    
                                              -2-
                               Legal Standards and Analysis
    
          This court has jurisdiction to review the district court’s denial of
    
    Mr. Graham’s § 3582(c) motion. United States v. Trujeque, 
    100 F.3d 869
    , 870-71
    
    (10th Cir. 1996) (citing 28 U.S.C. § 1291). “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) (quotation omitted). We construe
    
    liberally pleadings filed by pro se litigants. Hall v. Bellmon, 
    935 F.2d 1106
    , 1110
    
    (10th Cir. 1991).
    
          Mr. Graham filed his motion for sentence reduction under § 3582(c)(2)
    
    based on Amendment 706 to the Guidelines. “The Guidelines, through
    
    Amendment 706, generally adjust downward by two levels the base offense level
    
    assigned to quantities of crack cocaine. Amendment 706 took effect November 1,
    
    2007 and was made retroactive as of March 3, 2008.” United States v. Sharkey,
    
    
    543 F.3d 1236
    , 1237 (10th Cir. 2008).
    
          When, as here, 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).” Smartt, 129 F.3d at 540 (quotation and brackets
    
    omitted). Section 3582(c) provides that a district court “may not modify a term
    
    of imprisonment once it has been imposed,” unless the request falls within one of
    
    three exceptions. § 3582(c). The first exception requires that the Director of the
    
    Bureau of Prisons file the motion based on specified conditions. § 3582(c)(1)(A).
    
                                             -3-
    Second, “the court may modify an imposed term of imprisonment to the extent
    
    otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of
    
    Criminal Procedure.” § 3582(c)(1)(B). The third exception applies to “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.” § 3582(c)(2).
    
          Section 3582(c) does not apply to Mr. Graham. First, the motion to reduce
    
    his sentence was not filed by the Director of the Bureau of Prisons. Second,
    
    he is not eligible for relief “expressly permitted by statute” or by Rule 35.
    
    See Fed. R. Crim. P. 35 (stating relief available to correct clear error within seven
    
    days after sentencing, or upon motion filed by the government). Finally, because
    
    Mr. Graham’s sentence was stipulated to be twenty-five years under the terms of
    
    the plea agreement, pursuant to Rule 11(c)(1)(C), his sentence was not “based on
    
    a sentencing range that has subsequently been lowered by the Sentencing
    
    Commission,” § 3582(c)(2). Consequently, the district court lacked jurisdiction
    
    to consider the motion and should have dismissed it “without considering its
    
    merits.” Trujeque, 100 F.3d at 871.
    
    
    
    
                                              -4-
                                        Conclusion
    
          The district court was without jurisdiction to consider Mr. Graham’s
    
    § 3582(c)(2) motion, and the motion should have been dismissed for lack of
    
    jurisdiction. Therefore, this matter is remanded with instructions to dismiss the
    
    motion for lack of jurisdiction.
    
    
                                                        Entered for the Court
    
    
    
                                                        Michael R. Murphy
                                                        Circuit Judge
    
    
    
    
                                             -5-