FILED
United States Court of Appeals
Tenth Circuit
April 22, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-3282
v. (D. Kansas)
CRAIG T. WILLIAMS, (D.C. No. 99-CR-10092-WEB-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, MURPHY, and McCONNELL, 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.
In 2000, Craig T. Williams pleaded guilty to three counts of a three-count
indictment charging him with possessing with intent to distribute crack cocaine,
cocaine hydrochloride, and marijuana, all in violation of 21 U.S.C. § 841(a)(1).
*
This order and judgment is not binding precedent except under the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.
Utilizing the career offender provisions set out in U.S.S.G. § 4B1.1, rather than
the drug quantity provisions set out in U.S.S.G. § 2D1.1, the district court
sentenced Williams to a term of imprisonment of 216 months. 1 In a series of
amendments to the Sentencing Guidelines adopted in late 2007 and early 2008,
the United States Sentencing Commission decreased by two levels the base
offense level assigned to quantities of crack cocaine in § 2D1.1 and made that
change retroactive to those previously sentenced under § 2D1.1. United States v.
Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008) (setting out history of
Amendments 706 and 713 of the Sentencing Guidelines). Thereafter, Williams
filed a motion, pursuant to 18 U.S.C. § 3582(c), for a reduction in his sentence
pursuant to Amendments 706 and 713. The district court denied the motion,
concluding Williams was not entitled to relief because his base offense level was
set under the career offender guideline, rather than the crack cocaine guideline.
Thus, this appeal presents the following pure question of law: Did the district
court err in concluding Williams was not entitled to relief under § 3582(c)
because his offense level was set by application of the § 4B1.1 career offender
guideline, rather than the crack cocaine provisions set out in U.S.S.G. § 2D1.1? 2
1
This sentence represented a 46-month departure from the low-end of the
properly calculated advisory Guidelines range of 262-327 months’ imprisonment.
2
Although Williams did not file a timely notice of appeal, the failure to do
so does not implicate our jurisdiction. United States v. Garduno, 506 F.3d 1287,
1288-89 (10th Cir. 2007). Furthermore, because the United States did not raise
(continued...)
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In a decision issued shortly before the briefing was complete in this case,
we resolved this exact question. Sharkey, 543 F.3d at 1239. Sharkey holds that
when a defendant’s base offense level is set under the § 4B1.1 career offender
guideline, the defendant is not entitled to a reduction in his sentence pursuant to
Amendment 706 and § 3582(c). Id. It further holds that neither the decision in
United States v. Booker, 543 U.S. 220 (2005), nor in Kimbrough v. United States,
128 S. Ct. 558 (2007), alter that outcome. Sharkey, 543 F.3d at 1239.
As Sharkey makes clear, the district court correctly denied Williams’
§ 3582(c) motion for a reduction in his sentence. Thus, the order of the United
States District Court for the District of Kansas denying Williams’ § 3582(c)
motion is hereby AFFIRMED. 3 Williams’ request to proceed on appeal in forma
pauperis is GRANTED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
2
(...continued)
the timeliness of Williams’ notice of appeal, and because the resolution of this
appeal on the merits will not lead to a waste of judicial resources, this court
proceeds to the merits of this appeal. United States v. Mitchell, 518 F.3d 740,
749-50 & n.13 (10th Cir. 2008).
3
Williams’ “Motion Requesting to Amend and/or Incorporate Addendum to
His Reply Brief to Government’s Brief to Appellant’s 18 U.S.C. § 3582(c)(2)
Motion” is granted.
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