United States v. Muldrow ( 2009 )

  •                                                                        FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                                                      January 6, 2009
                         UNITED STATES COURT OF APPEALS
                                                      Elisabeth A. Shumaker
                                                                        Clerk of Court
                                       TENTH CIRCUIT
                                                            No. 08-3232
     v.                                          (D.C. No. 2:92-CR-20063-02-JWL)
                                                            (Dist. Kan.)
                                    ORDER AND JUDGMENT *
    Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
          Lealon Muldrow was convicted in 1993 of possessing 4.29 kilograms of
    crack cocaine with the intent to distribute it. His total offense level was 42,
    which, when combined with his criminal history category of V, yielded a
    proposed sentence under the Guidelines of between 360 months to life
             After examining appellant’s brief and the 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) and 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    order and judgment is not binding precedent except under the doctrines of law of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.
    imprisonment. The district court ultimately sentenced Mr. Muldrow to a term of
    360 months.
             In 2008, Mr. Muldrow filed a pro se motion under 18 U.S.C. § 3582(c)(2),
    arguing that he was eligible for a reduced sentence under Amendment 706 of the
    Sentencing Guidelines. The Amendment effectively reduces crack cocaine
    sentences by two base levels, see U.S.S.G. App. C Supplement, Amendment 706
    (Nov. 1, 2007), and it applies retroactively, see id. at Amendment 713 (Mar. 3,
             In his pro se motion, Mr. Muldrow also requested that the district court,
    when resentencing him pursuant to Amendment 706, reconsider two sentencing
    enhancements made in the course of his original sentence (one associated with the
    fact Mr. Muldrow committed his crime in proximity to a school; the other for
    obstruction of justice). Mr. Muldrow further asked the court to reconsider his
    sentence in light of the fact that, since the time of his original sentencing hearing,
    the Guidelines have been declared advisory rather than mandatory. See United
    States v. Booker, 
    543 U.S. 220
             The district court denied Mr. Muldrow’s motion. First, it found that, even
    with application of the Amendment, he still faced the same sentencing range, and
    was thus ineligible for a sentence reduction under section 3582(c)(2). Second,
    having denied resentencing under section 3582(c)(2), the court concluded it
    lacked authority to reopen and reconsider aspects of his original sentence
    unrelated to Amendment 706. This appeal followed. 1
          We review a district court’s decision to deny a reduction in sentence under
    18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Dorrough, 
    84 F.3d 1309
    , 1311 (10th Cir. 1996). Section 3582(c)(2) states that “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 . . . the court may reduce the term of imprisonment, after considering
    the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable,
            Mr. Muldrow’s notice of appeal was filed outside the 10-day period
    prescribed by Rule 4(b)(1)(A), but within the permissible 30-day extension
    period. Mr. Muldrow asked for an extension of time, and a panel of this court
    remanded the matter to the district court to determine if there was good cause or
    excusable neglect for the delay sufficient to satisfy Rule 4(b)(4). The district
    court entered an order finding good cause, and extending the deadline for Mr.
    Muldrow to file his appeal to August 13, 2008 – the date the notice of appeal was
    filed. Because the government does not contest timeliness, we have no reason to
    question the district court’s order. See United States v. Garduno, 
    506 F.3d 1287
    1291 (10th Cir. 2007) (Rule 4(b)’s timeliness requirement is a claim processing
    rule which may be forfeited if not properly raised by the government).
           We note additionally that Mr. Muldrow’s motion for appointment of
    counsel, filed along with his notice of appeal, is denied. See Coronado v. Ward,
    517 F.3d 1212
    , 1218 (10th Cir.), cert. denied, 
    129 S. Ct. 134
     (2008) (“There is no
    constitutional right to counsel beyond the direct appeal of a criminal conviction”);
    see also United States v. Olden, 
    2008 WL 4596336
     (Oct. 15, 2008) (same result
    when appealing denial of § 3582 motion).
    if such a reduction is consistent with applicable policy statements issued by the
    Sentencing Commission.” (emphasis added).
          In turn, the Sentencing Commission’s policy statement at U.S.S.G.
    § 1B1.10(a)(2)(B) provides that a reduction “is not consistent with this policy
    statement,” and therefore not authorized under 18 U.S.C. § 3582(c)(2), when “an
    amendment listed in subsection (c) does not have the effect of lowering the
    defendant’s applicable guidelines range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis
    added). Because Amendment 706 is listed in subsection (c), in deciding whether
    a section 3852(c)(2) reduction is appropriate, the first question we must ask is
    whether application of the Amendment would have the effect of lowering Mr.
    Muldrow’s applicable Guidelines range.
          Had Amendment 706 been in place at the time of Mr. Muldrow’s original
    sentencing, it would have lowered by two levels his base offense level to 36,
    rather than 38. Even so, Amendment 706 would have had no effect on the
    remaining enhancements Mr. Muldrow received (a two-level adjustment
    associated with conducting drug activities near a school under U.S.S.G.
    § 2D1.2(a)(1) (Nov. 1, 1992), and another two-level adjustment for obstruction of
    justice under U.S.S.G. § 3C1.1 (Nov. 1, 1992)), which together would have
    brought his base level to 40. When combined with his criminal history category
    of V, an offense level of 40 would have still resulted in Mr. Muldrow’s
    Guidelines sentencing range being 360 months to life in prison – that is, exactly
    the same as it was without application of Amendment 706. Because Mr.
    Muldrow’s Guidelines range is thus unchanged by application of Amendment 706,
    he is ineligible for relief under section 3582(c)(2). See U.S.S.G. § 1B1.10(b)(1);
    United States v. Sharkey, 
    543 F.3d 1236
    , 1239 (10th Cir. 2008) (district court did
    not abuse its discretion in denying section 3582(c)(2) motion, where other
    Guidelines provisions produced an offense level which did not alter the
    Guidelines range from that originally determined by the sentencing court).
          Mr. Muldrow argues that, even if he is ineligible for relief under section
    3582(c), the district court should have reconsidered his other sentencing
    enhancements. But, by its terms, section 3582(c)(2) forecloses the district court
    from reconsidering any other Guidelines applications not specifically listed in
    subsection (c). U.S.S.G. § 1B1.10(b)(1) (Supp. May 1, 2008). And neither Mr.
    Muldrow’s enhancement for conducting drug transactions near a school nor his
    enhancement for obstructing justice are listed in subsection (c). We have
    previously held in a similar situation that section 3582(c)(2) permits a court only
    to consider whether a defendant is entitled to a two-level offense reduction under
    Amendment 706, and “not to reevaluate his sentence under the Guidelines.”
    United States v. Leroy, No. 08-5088, 
    2008 WL 4636725
    , at *3 (10th Cir. Oct. 21,
    2008) (unpublished); see also United States v. Smartt, 
    129 F.3d 539
    , 542-43 (10th
    Cir. 1997) (district court does not have jurisdiction under section 3582 to consider
    collateral sentencing issues).
           Mr. Muldrow further asserts that the district court erred in refusing to
    reconsider his sentence in light of the Supreme Court’s intervening decision in
    Booker and the renewed importance of the sentencing factors enumerated in 18
    U.S.C. § 3553(a). But because the district court lacked authority under section
    3582(c)(2) to resentence him, it correctly held, consistent with our binding
    precedents, that it had “no occasion to consider the 18 U.S.C. § 3553(a) factors.”
    Sharkey, 543 F.3d at 1239; see also United States v. Price, 
    438 F.3d 1005
    , 1007
    (10th Cir. 2006) (“[E]ven if Booker could be read to be an implicit lowering of
    [defendant’s] sentencing range, § 3582(c)(2) only expressly allows a reduction
    where the Sentencing Commission, not the Supreme Court, has lowered the
                                           ENTERED FOR THE COURT
                                           Neil M. Gorsuch
                                           Circuit Judge