United States v. Pedraza , 347 F. App'x 397 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 1, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-2179
(D. N.M.)
ALFONSO PEDRAZA, (D.Ct. No. 1:90-cr-00285-MV-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th
Cir. R. 34.1(G). We accept this case for submission on the briefs.
Upon his motion, based upon amendments to the sentencing guidelines,
Alfonso Pedraza 1 was resentenced for his 1991 conviction of conspiracy to traffic
*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
1
Alfonso should not be mistaken for his brother Enrique Pedraza, whose appeal
from a resentencing decision by the same district court judge (and whose conviction
stemmed from the same series of events) we addressed in December of 2008. See United
States v. Pedraza, 550 F.3d 1218 (10th Cir. 2008). In this order “Pedraza” refers only to
cocaine. He received partial relief for amendments made retroactive by the
commission, but the district court refused a reduction based upon Amendment
439, which has not been made retroactive. 18 U.S.C. § 3582. We affirm.
I. BACKGROUND
Pedraza was convicted in 1991 of conspiracy to possess with intent to
distribute more than five kilograms of cocaine. He was sentenced in 1992, in
accordance with the 1991 version of the sentencing guidelines. Under that
version, the court was required to attribute the total amount of cocaine possessed
by the co-defendants as part of the conspiracy – in this case, more than 700
kilograms – to Pedraza. See USSG §1B1.3 (1991). Accordingly, Pedraza’s base
offense level was calculated to be 40. Combined with a criminal history category
IV, he was subject to a guideline imprisonment range of 360 months to life.
Pedraza was sentenced at the low end of the range – 360 months. He filed a
direct appeal. See United States v. Pedraza, 27 F.3d 1515 (10th Cir. 1994). 2
While his appeal was pending, §1B1.3 was altered by the adoption of
Amendment 439, effective November 1, 1992. This amendment required courts
to count only those quantities of drugs connected to the defendant’s actions and
“all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” 18 U.S.C. Appx. C, amend. 439.
Alfonso; Enrique Pedraza is referred to by his full name.
2
At that time, Alfonso spelled his name “Alphonso.”
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In 1994, the Sentencing Commission adopted Amendment 505, which
reduced the upper level for all drug offenses to 38. USSG App. C, amend. 505.
A year later the Commission made the new limit retroactive by promulgating
Amendment 536. USSG App. C, amend. 536.
In 2007, Pedraza filed a motion for resentencing pursuant to 18 U.S.C.
§ 3582(c)(2) and USSG §1B1.10. He asked the court reduce his sentence in
accordance with the amendments. The district court applied Amendment 505
retroactively, as directed by the Sentencing Commission, and reduced Pedraza’s
base offense level from 40 to 38, resulting in an advisory guideline range of 324
to 405 months imprisonment. The court declined to apply Amendment 439, even
though it agreed Pedraza could not have foreseen the amount of drugs ultimately
transported as part of the conspiracy, concluding it had no discretion to apply
Amendment 439 retroactively. It also refused to vary below the amended
guideline range, concluding it had no authority to do so. It imposed a sentence of
324 months imprisonment on Dec. 13, 2007. 3
II. 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) (quotations omitted). “The scope of a district court’s authority in a
resentencing proceeding under § 3582(c)(2) is a question of law that we review de
3
USSG §1B1.10 was amended, effective Nov. 1, 2007. All references to the
United States Sentencing Guidelines in relation to Pedraza’s resentencing refer to the
2007 version.
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novo.” United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008), cert. denied,
129 S. Ct. 2052 (2009).
18 U.S.C. § 3582(c) provides in pertinent part:
The court may not modify a term of imprisonment once it has been
imposed except that . . . (2) 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 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.
The applicable policy statement, USSG §1B1.10, provides in relevant part
that where,
the guideline range applicable to [a] defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed
in subsection (c) below, a reduction in the defendant’s term of
imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of
the amendments listed in subsection (c) is applicable, a reduction in
the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2)
is not consistent with this policy statement and thus is not authorized.
USSG §1B1.10(a)(1) (2007). Subsection (c) does not list Amendment 439 among
the covered, retroactive amendments. See USSG §1B1.10(c). Accordingly, the
district court did not abuse its discretion in denying Pedraza’s § 3582 motion to
reduce his sentence under Amendment 439.
Pedraza argues the district court erred in not applying Amendment 439
retroactively or granting him a variance from the amended advisory guideline
range because the court has the authority, based on the principles underlying
United States v. Booker, 543 U.S. 220 (2005), to do so. He urges us to adopt the
Ninth Circuit’s rationale from United States v. Hicks, 472 F.3d 1167 (9th Cir.
-4-
2007). We have rejected this argument. See Rhodes, 549 F.3d at 840 (“Booker
simply has no bearing on sentencing modification proceedings conducted under
§ 3582(c)(2).”).
Pedraza acknowledges this has been resolved in our circuit but asks we
overrule our precedent. But “[w]e are bound by the precedent of prior panels
absent en banc reconsideration or a superseding contrary decision by the Supreme
Court.” United States v. Mitchell, 518 F.3d 740, 752 n.14 (10th Cir. 2008)
(quotation omitted).
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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