United States v. Hamilton ( 2009 )


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  •                                                                         FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
    
                         UNITED STATES COURT OF APPEALS January 6, 2009
                                                                    Elisabeth A. Shumaker
                                       TENTH CIRCUIT                    Clerk of Court
    
    
    
     UNITED STATES OF AMERICA,
    
              Plaintiff-Appellee,
                                                            No. 08-5094
     v.                                           (D.C. No. CR-05-0086-001-HDC)
                                                            (N.D. Okla.)
     DUANE HAMILTON,
    
              Defendant-Appellant.
    
    
                                    ORDER AND JUDGMENT *
    
    
    Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
    
    
          Defendant-Appellant Duane Hamilton, appearing pro se, argues that the
    
    district court abused its discretion in denying his 18 U.S.C. § 3582(c)(2) motion
    
    for reduction of sentence. We exercise jurisdiction under 28 U.S.C. § 1291.
    
    Reviewing Mr. Hamilton’s filings liberally, 1 we conclude that the district court
    
    
          *
              This order and judgment is not binding precedent, except under the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 case is therefore ordered submitted without oral argument.
          1
                Because Mr. Hamilton is proceeding pro se, we review his pleadings and
                                                                         (continued...)
    properly denied Mr. Hamilton’s § 3582 motion. Accordingly, we AFFIRM.
    
                                     BACKGROUND
    
          Mr. Hamilton pleaded guilty to possession with the intent to distribute 50
    
    grams or more of cocaine base (“crack”), in violation of 21 U.S.C. § 841(a)(1),
    
    (b)(1)(A)(iii), and carrying firearms during and in relation to a drug trafficking
    
    crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Mr. Hamilton was classified as
    
    a career offender. Accordingly, as applicable here, Mr. Hamilton’s Guidelines
    
    range was determined under U.S. Sentencing Guidelines Manual (U.S.S.G.) §
    
    4B1.1 by taking the greater of (1) the Guidelines range that results from adding
    
    the mandatory minimum penalty of the firearms count under § 924(c) to the
    
    minimum and maximum of the otherwise applicable Guidelines range for the drug
    
    offense, and (2) the Guidelines range determined using the table set forth in §
    
    4B1.1(c)(3). The former yielded the greater Guidelines range—specifically, 322
    
    to 387 months. This Court affirmed Mr. Hamilton’s sentence on direct appeal.
    
    United States v. Hamilton, 
    510 F.3d 1209
     (10th Cir. 2007), cert. denied, 128 S.
    
    Ct. 1922 (2008).
    
          Subsequently, Mr. Hamilton filed a motion for reduction of sentence
    
    pursuant to 18 U.S.C. § 3582(c)(2). The district court denied Mr. Hamilton’s
    
    
    
          1
            (...continued)
    filings liberally. See Haines v. Kerner, 
    404 U.S. 519
    , 520-21 (1972); Howard v.
    U.S. Bureau of Prisons, 
    487 F.3d 808
    , 815 (10th Cir. 2007).
    
                                             -2-
    motion, finding that Amendment 706 did not lower Mr. Hamilton’s applicable
    
    Guidelines range. Mr. Hamilton appeals.
    
                                       DISCUSSION
    
          “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) (citation and internal quotation marks omitted). “We review for an abuse
    
    of discretion a district court’s decision to deny a reduction in sentence under 18
    
    U.S.C. § 3582(c)(2).” United States v. Sharkey, 
    543 F.3d 1236
    , 1238 (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 (citation, internal
    
    quotation marks and alteration omitted).
    
          Section 3582(c)(2) states that:
    
                 [I]n 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 section 3553(a) to the
                 extent that they are applicable, if such a reduction is consistent
                 with applicable policy statements issued by the Sentencing
                 Commission.
    
    18 U.S.C. § 3582(c)(2) (emphasis added). A reduction of a term of imprisonment
    
    is not authorized (i.e., not consistent with applicable policy statements) under §
    
    3582(c) if the amendment “does not have the effect of lowering the defendant’s
    
    
                                             -3-
    applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
    
          “Amendment 706 lowered the base offense level [under § 2D1.1] for drug
    
    offenses involving crack cocaine.” United States v. Leroy, No. 08-5088, 
    2008 WL 4636725
    , at *2 (10th Cir. Oct. 21, 2008). “However, Amendment 706 had no
    
    effect on the career offender guidelines in § 4B1.1, which were the guidelines
    
    used by the district court in sentencing [Mr. Hamilton].” Sharkey, 543 F.3d at
    
    1239. Since Amendment 706 does not have the effect of lowering Mr. Hamilton’s
    
    applicable Guidelines range, his motion for relief pursuant to § 3582(c)(2) was
    
    properly denied.
    
          Further, we reject Mr. Hamilton’s argument that United States v. Booker,
    
    
    543 U.S. 220
     (2005), should apply to sentencing modification proceedings
    
    pursuant to § 3582(c)(2). Mr. Hamilton argues that the district court had the
    
    discretion to impose a non-guideline sentence under Booker. Aplt. Br. at 8.
    
    However, we rejected this argument in United States v. Rhodes, No. 08-2111,
    
    
    2008 WL 5102247
    , at *5-6 (10th Cir. Dec. 5, 2008). In Rhodes, we noted that
    
    “Booker made no alteration to § 3582(c)(2), which, as noted, provides the
    
    statutory basis for sentence modification proceedings. . . . Moreover, the Sixth
    
    Amendment concerns that gave rise to the Booker decision will not be replicated
    
    in sentence modification proceedings.” Id. at *6. Accordingly, “Booker simply
    
    has no bearing on sentencing modification proceedings conducted under §
    
    3582(c)(2).” Id.
    
                                             -4-
                                    CONCLUSION
    
         For the foregoing reasons, the district court did not abuse its discretion in
    
    denying Mr. Hamilton’s § 3582(c)(2) motion. Accordingly, we AFFIRM.
    
    
                                          ENTERED FOR THE COURT
    
    
    
                                          Jerome A. Holmes
                                          Circuit Judge
    
    
    
    
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