FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 17, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-3152
v. (D. Kansas)
ABELEE BRONSON, (D.C. No. 2:88-CR-20075-1-JWL)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Senior 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); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Abelee Bronson was convicted in the district of
Kansas of armed bank robbery and was sentenced to 262 months’ imprisonment,
to run consecutively to a 262-month sentence he received in the western district
*
This order and judgment is not binding precedent except under the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.
of Missouri for a prior armed bank robbery. In reliance on Amendment 709 to the
career offender provisions of the United States Sentencing Commission,
Guidelines Manual (“USSG”), which took effect on November 1, 2007, long after
Mr. Bronson’s sentencing proceeding, Mr. Bronson moved pursuant to 18 U.S.C.
§ 3582(c)(2) to modify his sentence for the Kansas robbery. In particular,
Mr. Bronson sought to have the two armed robbery convictions counted as one for
the purpose of determining whether he is a career offender, which would, he
claims, have the practical effect of having his sentences run concurrently, rather
than consecutively. 1
The district court denied Mr. Bronson’s motion, on the ground that
Amendment 709 was not retroactive and did not provide Mr. Bronson any relief.
This appeal followed, in which we affirm the district court.
1
As the commentary concerning Amendment 709 makes clear, the
amendment “simplifies the rules for counting multiple prior sentences. . . . Under
the amendment, the initial inquiry will be whether the prior sentences were for
offenses that were separated by an intervening arrest. . . . If so, they are to be
considered separate sentences, counted separately, and no further inquiry is
required.” USSG, Supp. to App. C, Amend. 709 at 238. Mr. Bronson argues that
both robberies should be counted as one for the purpose of determining whether
he is a career offender because there was no intervening arrest between the two.
We need not address this issue, as we explain, infra, that Amendment 709 does
not apply retroactively to Mr. Bronson’s sentence.
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BACKGROUND
As indicated, Mr. Bronson relies on Amendment 709 to the Sentencing
Guidelines to argue that his 262-month sentences should have been imposed
concurrently, rather than consecutively. He actually filed three motions: a
motion under 18 U.S.C. § 3582(c)(2) to modify his sentence, which the district
court denied; a motion to reconsider that denial, which the district court also
denied; and an amended motion to reconsider. The district court denied this last
motion as well. All of Mr. Bronson’s motions were premised upon Amendment
709 to the Guidelines.
Amendment 709 modified USSG §§ 4A1.1 and 4A1.2 of the Guidelines to
change the way certain prior convictions affect a defendant’s criminal history
category. The district court denied Mr. Bronson relief, on the ground that
Amendment 709 does not apply retroactively and therefore may not support a
§ 3582 reduction in sentence.
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) (further quotation omitted). “We review for an abuse of
discretion a district court’s decision to deny a reduction in sentence under 18
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U.S.C. § 3582(c)(2).” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.
2008).
Section 3582(c)(2) states that “[t]he court may not modify a term of
imprisonment once it has been imposed except . . . 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 . . . .” 18 U.S.C.
§ 3582(c)(2). That section further states that a court may only reduce a term of
imprisonment “if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” Id.
Pursuant to the Sentencing Commission’s policy statement on retroactive
reduction of sentences:
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), and any
such reduction in the defendant’s term of imprisonment shall be
consistent with this policy statement.
USSG § 1B1.10(a)(1) (emphasis added). Subsection (c) does not list Amendment
709 among the covered, retroactive amendments. See United States v. Peters, 524
F.3d 905, 907 (8th Cir.) (“Amendment 709 . . . is not a covered amendment under
§ 1B1.10 to which retroactive treatment may be given.”), cert. denied, 129 S. Ct.
290 (2008). Accordingly, the district court did not abuse its discretion in denying
Mr. Bronson’s § 3582 motion to reduce his sentence.
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Finally, Mr. Bronson argues that the district court erred in not applying
Amendment 709 retroactively because the court has the authority, based on the
principles underlying United States v. Booker, 543 U.S. 220 (2005), “to modify
[his] sentence despite the Sentencing Commission’s failure to specifically
designate Amendment 709 for retroactive application.” Appellant’s Br. at 4. We
have rejected this argument. “Booker simply has no bearing on sentencing
modification proceedings conducted under § 3582(c)(2).” United States v.
Rhodes, 549 F.3d 833, 840 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).
CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
The sentence is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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