FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 14, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-3283
v. (D. Kansas)
MYLAN BROWN, a/k/a Tommy (D.C. No. 2:03-CR-20149-KHV-02)
Davis, a/k/a Aric Gregory, a/k/a Big
Kev,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, HOLLOWAY, and GORSUCH, 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.
*
This order and judgment is not binding precedent except under the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.
Mylan Brown challenges the district court’s order denying his motion for
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Because Mr. Brown’s
advisory guideline range would not change with the retroactive application of the
Amendment 706, exercising our jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), we affirm.
In November 2004, Mr. Brown pleaded guilty to an offense involving
cocaine base. The sentencing court found Mr. Brown responsible for 5.45
kilograms of cocaine base and 103.6 kilograms of powder cocaine. The court
adopted the presentence report’s recommendations that calculated his base offense
level to be 38, which was the base offense level for cocaine base quantities of 1.5
kilograms or more under U.S.S.G. § 2D1.1(c)(1) (2004). After applying a
downward departure for substantial assistance, the court sentenced him to 262
months.
Mr. Brown filed a motion in the district court to modify his sentence
pursuant to the retroactive application of Amendment 706 of the Guidelines. 1
Reviewing the motion, the district court determined that Mr. Brown’s base
offense level remained at 38, which was the base offense level for cocaine base
1
Amendment 706 to U.S.S.G. § 2D 1.1(c), which modified the Drug
Quantity Table downward two levels for crack cocaine, 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);
Amends. 712 and 713 (Mar. 3, 2008 Supp.).
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quantities of 4.5 kilograms or more under U.S.S.G. § 2D1.1(c)(1) (2008). The
district court thus denied the motion.
Before this court, Mr. Brown appeals the district court’s refusal to also
consider his motion through the lens of 18 U.S.C. § 3553(a). He argues that the
United States Sentencing Commission’s recent 2008 revision to U.S.S.G. §
1B1.10(b) 2 violates United States v. Booker, 543 U.S. 220 (2005), by effectively
rendering the crack guidelines mandatory. He maintains that the district court
remained at liberty to reduce his sentence under § 3553(a)’s sentencing factors.
To constrain the district court otherwise, he argues, would be contrary to Booker,
543 U.S. at 245-46.
We review de novo the district court’s scope of authority in a resentencing
proceeding under 18 U.S.C. § 3582(c)(2) as well as its interpretation of a statute
or the Guidelines. United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008),
petition for cert. filed, 08-8318 (U.S. Jan. 21, 2009); United States v. Sharkey,
543 F.3d 1236, 1238 (10th Cir. 2008). We review the district court’s decision to
2
U.S.S.G. § 1B1.10(a)(1) as amended effective May 1, 2008 provides:
In a case in which a defendant is serving a term of imprisonment, and
the guideline range applicable to that defendant has subsequently been
lowered as a result of an amendment to the Guidelines Manual listed in
subsection (c) below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. 3582(c)(2). As required by 18
U.S.C. 3582(c)(2), any such reduction in the defendant’s term of
imprisonment shall be consistent with this policy statement.
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deny a reduction in sentence under § 3582(c)(2) for an abuse of discretion.
Sharkey, 543 F.3d at 1238. “When ‘a motion for [a] sentence reduction is not a
direct appeal or a collateral attack under 28 U.S.C. § 2255, the viability of [the]
motion depends entirely on 18 U.S.C. § 3582(c).’” Id. (quoting United States v.
Smartt, 129 F.3d 539, 540 (10th Cir. 1997)).
In Rhodes, we explained that Booker made the Guidelines advisory so
district courts, when conducting original sentencing proceedings, are no longer
bound by the sentencing ranges prescribed in the Guidelines. 549 F.3d at 839.
However, in considering whether the holding in Booker applied to a resentencing,
like Mr. Brown’s, we held § 3582(c)(2) does not permit a full resentencing based
on only 18 U.S.C. § 3553 factors and objectives. Id. at 840. Section 3582(c) 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.’” Id. (quoting 18 U.S.C. §
3582(c)(2)). Even before Rhodes, we held “that Booker does not provide a basis
for a sentence reduction under § 3582(c)” as “§ 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 (10th Cir. 2006).
Not only does Booker not authorize a variance during a § 3582(c)(2)
resentencing, but the United States Sentencing Commission has revised U.S.S.G.
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§ 1B1.10 so it expressly denies a district court’s authority to grant a downward
variance, stating “‘the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is less than the
minimum of the amended guideline range determined under subdivision (1) of this
subsection.’” United States v. Pedraza, 550 F.3d 1218, 1221 (10th Cir. 2008)
(quoting U.S.S.G. § 1B1.10(b)(2)(A) (2008)). Arguably, because the district
court resentenced Mr. Brown in July 2008, this revised guideline, effective
March 3, 2008, applies to him. However, even if it does not, we have held that
the prior version of § 1B1.10 also restricted a resentencing judge’s authority to
grant variances under § 3582(c). Id. at 1221-22 (relying on U.S.S.G. § 1B1.10(b)
& cmt. nn. 2-3 (2006)). Thus, under either version of that guideline, it is clear
the district court could consider only whether Mr. Brown was entitled to a
reduction under Amendment 706 and not whether any other reduction of his
sentence was warranted under the § 3553(a) sentencing factors. It thus appears
that Mr. Brown, having noted the circuit split we recognized in Rhodes, 549 F.3d
at 837, is preserving a foreclosed issue for possible en banc review or appeal to
the United States Supreme Court. 3
3
Before us, Mr. Brown raises, for the first time, the related argument that
our treatment of § 1B1.10(a)(2)’s limitation of the district court’s authority
violates the non-delegation doctrine. Reviewing for plain error, we note that we
have rejected the identical argument and that there is no error here. See United
States v. Dryden, ___ F.3d ___, 2009 WL 1153690, at *3 (10th Cir. Apr. 30,
(continued...)
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The crux of Mr. Brown’s arguments have been reviewed and rejected by
another panel of this court. We AFFIRM the district court’s order denying Mr.
Brown’s motion filed pursuant to 18 U.S.C. § 3582(c)(2) for a downward variance
under 18 U.S.C. § 3553(a).
Entered for the Court,
Robert H. Henry
Circuit Judge
3
(...continued)
2009) (“Because the language of USSG § 1B 1.10(a)(2) challenged by Mr.
Dryden as resulting from an unconstitutional delegation of Congressional
authority is merely a paraphrase of Congress’s own language, his delegation
argument fails.”).
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