United States v. Taylor , 362 F. App'x 924 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 26, 2010
UNITED STATES COURT OF APPEALS A. Shumaker
Elisabeth
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 09-6042
v. (D.C. No. 5:95-CR-00158-D-1)
(W. Dist. Okla.)
JOHN R. TAYLOR,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.
John R. Taylor appeals from the denial of his motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2). The district court determined that although
amendments to the United States Sentencing Guidelines (U.S.S.G.) lowered
certain base offense levels for crack cocaine offenses, Mr. Taylor was not eligible
for resentencing because he was sentenced as a career offender. We dismiss the
*
After examining the briefs and 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); 10th Cir. R. 34.1(G). This 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
appeal as untimely.
Mr. Taylor was indicted and convicted of conspiracy to possess with intent
to distribute cocaine base in violation of 21 U.S.C. § 846 (Count I), and with
intent to distribute approximately 115 grams of crack cocaine in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count III). Because he was a career
offender, he received a sentence of 360 months on both counts, to be served
concurrently.
Subsequently, the United States Sentencing Commission reduced the
offense level applicable to most crack cocaine offenses by two levels. See U.S.
Sentencing Guidelines Manual app. C, amend. 706 (Supp. May 1, 2008) (revising
crack cocaine guidelines); U.S. Sentencing Guidelines Manual app. C, amend. 713
(Supp. May 1, 2008) (making Amendment 706 retroactive). Mr. Taylor then
moved for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The
district court denied relief. On appeal, Mr. Taylor argues that although he was
sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, his sentence should
be reduced under § 3582(c)(2) based on retroactive application of Amendment
706.
The government contends this appeal is untimely. In § 3582 proceedings,
the notice of appeal is due within 10 days of the entry of the judgment or order
appealed from. See Fed. R. App. P. 4(b)(1)(A). In this case, Mr. Taylor filed his
notice of appeal of the district court’s February 11, 2009 order on March 2, 2009.
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Although the prisoner mailbox rule deems an inmate’s notice of appeal timely “if
it is deposited in the institution’s internal mail system on or before the last day
for filing,” see Fed. R. App. P. 4(c)(1), Mr. Taylor’s notice of appeal did not
contain a certificate of mailing or any other information indicating compliance
with Rule 4(c), nor did he respond to the Government’s timeliness challenge.
Given the possibility that the notice could be considered timely under the mailbox
rule, we issued a show cause order providing Mr. Taylor with yet another
opportunity to demonstrate compliance with Fed. R. App. P. 4(c). He did not
respond. Accordingly, his appeal is time-barred. 1
We DISMISS the appeal as untimely. Appellant’s motion to proceed in
forma pauperis is DENIED.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
1
In any event, Mr. Taylor’s sentence was not based on a sentencing range
that was subsequently lowered. As we held in United States v. Sharkey, 543 F.3d
1236, 1239 (10th Cir. 2008), “Amendment 706 ha[s] no effect on the career
offender guidelines in § 4B1.1,” and therefore a reduction in sentence is not
authorized under § 3582(c)(2). Because Mr. Taylor’s status as a career offender
determined his sentence, Amendment 706 did not lower his applicable guidelines
range.
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