United States v. Williams ( 2009 )


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  •                                                                        FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
    
                                                                      January 8, 2009
                         UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                     TENTH CIRCUIT                      Clerk of Court
                                __________________________
    
     UNITED STATES OF AMERICA,
    
              Plaintiff-Appellee,
                                                            No. 08-5111
     v.                                          (D.Ct. No. 4:99-CR-00033-HDC-3)
                                                            (N.D. Okla.)
     KERMIT OTIS WILLIAMS,
    
              Defendant-Appellant.
                            ____________________________
    
                                    ORDER AND JUDGMENT *
    
    
    Before BARRETT, ANDERSON, and BRORBY, 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.
    
    
    
          Appellant Kermit Otis Williams, a federal inmate, appeals the district
    
    court’s denial of his request for a variance sought in conjunction with his motion
    
          *
             This order and judgment is not binding precedent except under the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.
    under 18 U.S.C. § 3582(c)(2) to modify his sentence based on 18 U.S.C.
    
    § 3553(a)(6). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
    
    
    
                                  I. Procedural Background
    
          On April 4, 2000, a jury convicted Mr. Williams of conspiracy to possess
    
    with intent to distribute and to distribute cocaine base (crack) in violation of 21
    
    U.S.C. § 846. After Mr. Williams was convicted, a federal probation officer
    
    prepared a presentence report in conjunction with the 1998 United States
    
    Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) to determine his sentence.
    
    Based on Mr. Williams’s participation in a conspiracy to distribute 715.06 grams
    
    of crack cocaine, his base offense level was assessed at 36. The probation officer
    
    then enhanced his base offense level two levels for his possession of a firearm
    
    during the offense and two levels for his role in the offense, for a total offense
    
    level of 40. Mr. Williams’s total offense level of 40, combined with his criminal
    
    history category of I, resulted in a Guidelines range of 292 to 365 months
    
    imprisonment. However, because the sentence could not be more than the
    
    statutory maximum of twenty years, the probation officer determined the
    
    Guidelines range was 240 months imprisonment.
    
    
    
          Thereafter, the district court sentenced Mr. Williams to 240 months
    
    imprisonment. We affirmed Mr. Williams’s conviction and sentence on direct
    
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    appeal, see United States v. Williams, 44 F.App’x 362 (10 th Cir. Aug. 8, 2002)
    
    (unpublished op.) (per curiam), and the Supreme Court denied his petition for a
    
    writ of certiorari, see Williams v. United States, 
    537 U.S. 1095
     (2002).
    
    Thereafter, Mr. Williams sought a certificate of appealability to appeal the district
    
    court’s denial of his 28 U.S.C. § 2255 habeas petition, and we denied his request
    
    and dismissed his appeal. See United States v. Williams, 117 F.App’x 21 (10 th
    
    Cir. Oct. 20, 2004) (unpublished op.).
    
    
    
          On February 29, 2008, Mr. Williams filed the instant motion to modify his
    
    sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 706 to U.S.S.G.
    
    § 2D1.1(c) which modified the Drug Quantity Table contained therein downward
    
    two levels for crack cocaine and became effective November 1, 2007, and
    
    retroactive as of March 3, 2008. See U.S.S.G. Supp. to App’x C, Amend. 706
    
    (Reason for Amend.); U.S.S.G. § 1B1.10(a) and (c) (Nov. 1, 2007); Amends. 712
    
    and 713 (Mar. 3, 2008 Supp.). In his motion, Mr. Williams also argued for a
    
    downward variance, based on 18 U.S.C. § 3553(a)(6), for a reduced sentence of
    
    188 months imprisonment in order to avoid what he claimed was an unwarranted
    
    sentencing disparity in comparison with his co-defendant, Lamont Williams, who
    
    received a 188-month sentence.
    
    
    
          After appointing counsel to represent Mr. Williams and receiving briefing
    
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    from the parties, the district court issued an order determining Mr. Williams’s
    
    total offense level should be retroactively reduced from 40 to 38, pursuant to 18
    
    U.S.C. § 3582(c)(2) and Amendment 706, for an amended Guidelines range of
    
    235 to 240 months imprisonment. See U.S.S.G. § 2D1.1(c)(1) (Drug Quantity
    
    Tbl.) (2007 ed.). After noting the motion for such a reduction was unopposed, the
    
    district court granted that portion of Mr. Williams’s § 3582 motion requesting a
    
    reduction in sentence to 235 months imprisonment.
    
    
    
          Next, the district court denied Mr. Williams’s request for a downward
    
    variance. In so doing, it discussed the merits of his argument and explained, in
    
    part, that Mr. Williams did not present any “individualized factors” distinguishing
    
    him “from other similarly situated defendants” but, instead, presented “a broad,
    
    categorical argument” insufficient to support the requested variance. It explained
    
    sentencing decisions must be grounded in case-specific considerations and not on
    
    a general disagreement with broad-based policies pronounced by Congress and
    
    the Sentencing Commission. It also stated it could not “completely ignore the
    
    ratio differences between cocaine powder and crack cocaine because the advisory
    
    guideline range, which remains relevant under § 3553(a) analysis, and the
    
    statutory minimum and mandatory sentences reflect Congress’ preferred ratio.”
    
    R., Vol. 1, 7/14/08 Order at 2.
    
    
    
    
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                                       II. Discussion
    
          Mr. Williams now appeals the district court’s dismissal of his motion to
    
    modify his sentence under 18 U.S.C. § 3582(c)(2) for a downward variance under
    
    18 U.S.C. § 3553(a)(6). In support, he argues his sentence is procedurally
    
    unreasonable based on the district court’s failure to recognize the applicable law
    
    established in Kimbrough v. United States, 
    128 S. Ct. 558
    , 574-76 (2007). In
    
    Kimbrough, the Supreme Court explained the cocaine guidelines, which provide a
    
    recognized disparity between cocaine base and powder, could not be applied
    
    mandatorily but are advisory and subject to the particular circumstances of each
    
    case. See id.
    
    
    
          We begin by noting that in Kimbrough the issue regarding Guidelines
    
    sentencing disparities between cocaine base (crack) and cocaine powder was
    
    raised and addressed in the original proceeding. See id. at 564-66. In contrast,
    
    Mr. Williams’s argument for a variance relies on § 3582(c)(2) in a modification
    
    proceeding, which is precluded by our prior precedent. In United States v.
    
    Rhodes, we held § 3582(c)(2) does not permit resentencing based on 18 U.S.C.
    
    § 3553 factors and objectives, but is much more limited, authorizing “a district
    
    court to reduce the term of imprisonment only if such a reduction is consistent
    
    with applicable policy statements issued by the Sentencing Commission.” 
    549 F.3d 833
    , ___, 
    2008 WL 5102247
    , at *5 (10 th Cir. Dec. 5, 2008). Applying
    
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    similar reasoning, in United States v. Sharkey this court rejected the same
    
    argument presented here that § 3582(c)(2) somehow authorizes a sentence
    
    reduction based on the 18 U.S.C. § 3553(a) factors and the Supreme Court’s
    
    decision in Kimbrough. See 
    543 F.3d 1236
    , 1238-39 (10 th Cir. 2008). Even
    
    before Rhodes and Sharkey, this court held § 3582(c)(2) motions may not be
    
    employed to present Booker-type claims, as Ҥ 3582(c)(2) only expressly allows a
    
    reduction where the Sentencing Commission, not the Supreme Court, has lowered
    
    the [sentencing] range.” United States v. Price, 
    438 F.3d 1005
    , 1007 & n.2 (10 th
    
    Cir. 2006). Thus, under § 3582, it is clear the district court could consider only
    
    whether Mr. Williams was entitled to a two-level offense reduction under
    
    Amendment 706, and not the merits of whether any other reduction of his
    
    sentence was warranted under § 3553.
    
    
    
                                      III. Conclusion
    
          For these reasons, we AFFIRM on other grounds the district court’s order
    
    denying, in part, Mr. Williams’s motion filed pursuant to 18 U.S.C. § 3582(c)(2)
    
    for a downward variance.
    
    
                                           Entered by the Court:
    
                                           WADE BRORBY
                                           United States Circuit Judge
    
    
    
    
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