United States v. Verners ( 2009 )

  •                                                                        FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                                                     January 13, 2009
                         UNITED STATES COURT OF APPEALS
                                                      Elisabeth A. Shumaker
                                                                       Clerk of Court
                                     TENTH CIRCUIT
                                                            No. 08-5108
     v.                                          (D.Ct. No. 4:93-CR-00001-HDC-1)
                                                            (N.D. Okla.)
                                    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 Laroan F. Verners, a federal inmate, appeals the district court’s
    denial of his request for a variance sought in conjunction with his motion under
             This order and judgment is not binding precedent except under the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.
    18 U.S.C. § 3582(c)(2) to modify his sentence based on the sentencing factors in
    18 U.S.C. § 3553(a). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
                                 I. Procedural Background
          In 1993, a jury convicted Mr. Verners of various offenses, including one
    count of possession with intent to distribute cocaine base (crack) within one
    thousand feet of a protected location, in violation of 18 U.S.C. § 2 and 21 U.S.C.
    §§ 841(a)(1), (b)(1)(A), and 860(a). See United States v. Verners, 
    53 F.3d 291
    293 (10 th Cir. 1995) (Verners I). Mr. Verners appealed his convictions and we
    reversed one drug-related offense and affirmed the others. Id. at 295 n.2, 298.
    On remand, Mr. Verners received the same sentence as previously imposed and
    this court affirmed his sentence on appeal. See United States v. Verners, 
    111 F.3d 140
    1997 WL 183510
    , at *2 (10 th Cir. Apr. 15, 1997) (unpublished op.) (Verners
    II). Mr. Verners then filed a § 2255 motion raising several ineffective assistance
    of counsel claims and arguing his firearms conviction must be vacated in light of
    Bailey v. United States, 
    516 U.S. 137
     (1995). See United States v. Verners, 
    182 F.3d 934
    1999 WL 332700
    , at *1 (10 th Cir. May 26, 1999) (unpublished op.)
    (Verners III). The district court granted the § 2255 motion, in part, by vacating
    his firearms conviction but rejected Mr. Verners’s ineffective assistance of
    counsel claims. Id. It then ordered preparation of a revised presentence report to
    use in resentencing Mr. Verners.
          In the revised presentence report, the probation officer applied the 1997
    United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) in determining
    Mr. Verners’s possession with intent to distribute 4.108 kilograms of crack
    cocaine within one thousand feet of a protected location warranted a base offense
    level of 40. The probation officer then enhanced his base offense level two levels
    for his possession of a firearm during the offense, pursuant to U.S.S.G.
    § 2D1.1(b)(1), for a total offense level of 42. Mr. Verners’s total offense level of
    42, combined with his criminal history category of I, resulted in a Guidelines
    range of 360 months to life imprisonment. The probation officer also noted the
    maximum statutory term of imprisonment for possession with intent to distribute
    cocaine base (crack) was ten years to life.
          After adopting the factual findings and Guidelines applications in the
    revised presentence report, the district court sentenced Mr. Verners at the low end
    of the sentencing range to 360 months imprisonment for the count of possession
    with intent to distribute crack cocaine and imposed a concurrent sentence of 240
    months for the remaining count of establishment of manufacturing operations in
    violation of 21 U.S.C. § 856(a)(1). We affirmed Mr. Verners’s sentence on
    appeal and denied his application for a certificate of appealability on his
    ineffective assistance of counsel claims. See Verners III, 
    1999 WL 332700
    , at
    *6. 1
            On March 31, 2008, Mr. Verners 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 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. 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. Verners also argued for a downward variance, based
    on the sentencing factors in 18 U.S.C. § 3553(a), for a reduced sentence of 292
    months imprisonment, and asserted the Supreme Court’s decisions in Kimbrough
              Thereafter, Mr. Verners appealed various district court rulings to this
    court. First, we affirmed the district court’s judgment ordering forfeiture of
    currency by Mr. Verners. See United States v. $43,646.00, 
    182 F.3d 933
    1999 WL 360168
    , at **1-3 (10 th Cir. June 4, 1999) (unpublished op.). We also
    remanded to the district court a matter involving Mr. Verners’s “Motion for
    Tolling of Time to File § 2255” with instructions to dismiss, rather than deny, the
    motion for lack of jurisdiction. See United States v. Verners, 15 F.App’x 657,
    660 (10 th Cir. July 17, 2001) (unpublished op.) (Verners IV). Next, we denied his
    application for authorization to file a second or successive § 2255 motion. See
    United States v. Verners, 49 F.App’x 803 (10 th Cir. Oct. 17, 2002) (unpublished
    op.) (Verners V). Finally, we affirmed the district court’s denial of Mr. Verners’s
    motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on its
    conclusion he did not qualify for a sentence reduction under Amendment 591
    because it did not apply to defendants, like Mr. Verners, who were convicted of a
    statutory violation of drug trafficking in a protected location. See United States v.
    Verners, 136 F.App’x 142, 143-45 (10 th Cir. June 8, 2005) (unpublished op.)
    (Verners VI).
    v. United States, ___ U.S. ___, 
    128 S. Ct. 558
     (2007), and United States v.
    543 U.S. 220
     (2005), supported such a reduction.
          After appointing counsel to represent Mr. Verners and receiving briefing
    from the parties, the district court issued an order determining Mr. Verners’s total
    offense level should be retroactively reduced from 42 to 40, pursuant to 18 U.S.C.
    § 3582(c)(2) and Amendment 706, for an amended Guidelines range of 292 to 365
    months imprisonment. See U.S.S.G. § 2D1.1(c)(1) (Drug Quantity Tbl.) (2007
    ed.). It then granted Mr. Verners’s request for a reduction of sentence under
    Amendment 706 and imposed a sentence of 292 months imprisonment on his
    offense of possession with intent to distribute crack cocaine.
          However, the district court denied that portion of Mr. Verners’s § 3582
    motion requesting a downward variance based on the § 3553(a) sentencing
    factors, including the discrepancies between sentences for crack cocaine and
    cocaine powder. In so doing, it discussed the merits of Mr. Verners’s argument
    and explained, in part, that no “individualized factors” distinguished him “from
    other similarly situated defendants.” It further 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. During this discussion, it 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, 7/15/08 Order at 2-3.
                                        II. Discussion
          Mr. Verners now appeals the district court’s dismissal of that portion of his
    § 3582 motion requesting a downward variance under 18 U.S.C. § 3553(a), basing
    his argument on the decision in Kimbrough. In that case, 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 Kimbrough, 128 S. Ct. at
    574-76. Mr. Verners claims his sentence is procedurally unreasonable due to the
    district court’s alleged inaccurate statement of the law of that case.
          In Kimbrough, the issue regarding Guidelines sentencing disparities
    between crack cocaine and cocaine powder was raised and addressed in the
    original proceeding. See id. at 564-66. In contrast, in the instant appeal, Mr.
    Verners’s argument for a variance is premised on § 3582(c)(2) in a modification
    proceeding. Thus, under our prior precedent, Mr. Verners’s appeal must fail. 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
    549 F.3d 833
    , 840 (10 th Cir. 2008). Similarly, in United States v.
    Sharkey, this court rejected the same argument presented here that § 3582(c)(2)
    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. Verners 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 that portion of Mr. Verners’s motion filed pursuant to 18 U.S.C.
    § 3582(c)(2) for a downward variance under 18 U.S.C. § 3553(a).
                                          Entered by the Court:
                                          WADE BRORBY
                                          United States Circuit Judge