FILED
United States Court of Appeals
Tenth Circuit
October 20, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5019
(D.C. No. 4:99-CR-00078-CVE-1)
LAWRENCE RINGER, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
Lawrence Ringer, a federal prisoner appearing pro se, appeals from the
district court’s Opinion and Order dismissing in part and denying in part his
motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). Section
3582(c)(2) allows the court to reduce a criminal sentence when the sentencing
*
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). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
range under which the prisoner was sentenced was subsequently lowered by the
United States Sentencing Commission under the authority of 28 U.S.C. § 994(o).
Mr. Ringer was convicted on two counts of bank robbery and one count of
possessing a firearm during commission of a felony. He was sentenced to
concurrent prison terms of 120 months’ imprisonment on each of the first two
counts, and a consecutive term of 84 months on the third count, for a total of 204
months. His motion under § 3582(c)(2) argued that he was entitled to a sentence
reduction based on Amendments 394, 591, 599, and 709 to the United States
Sentencing Guidelines (USSG). He also sought relief for alleged violations of his
right to effective assistance of counsel and his right to a jury trial on factual
issues that could increase his sentence.
The district court, as do we, liberally construed Mr. Ringer’s pro se
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). It
held that Amendments 394 and 591 had no application to the guidelines
provisions relied upon for his sentence, and that Amendment 709 is not
retroactive. As for Amendment 599, the court held that it had discretion under
18 U.S.C. § 3582(c)(2) to reduce Mr. Ringer’s sentence but that it would not
exercise that discretion because of his criminal history, including an extensive
misconduct record in prison. In addition, the district court dismissed
Mr. Ringer’s other claims for lack of jurisdiction because they were not proper
claims under § 3582(c). Although they could be construed as claims for habeas
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relief under 28 U.S.C. § 2255, Mr. Ringer had already pursued one § 2255 motion
and the district court could not proceed to hear a second or successive § 2255
motion without authorization from this court. The district court then ruled that it
was not in the interests of justice to transfer the habeas claims to this court for
consideration as a second or successive § 2255 motion.
Mr. Ringer’s first claim in this court is that the district court erred in not
reducing his sentence under Amendment 599. “We review for an abuse of
discretion a district court’s decision to deny a reduction in sentence under
18 U.S.C. § 3582 (c)(2).” United States v. Sharkey, 543 F.3d 1236, 1238 (10th
Cir. 2008). “Under the abuse of discretion standard we will not reverse a district
court’s decision unless we have a definite and firm conviction that the lower court
made a clear error of judgment or exceeded the bounds of permissible choice in
the circumstances.” United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.
1996) (internal quotation marks omitted). We discern no abuse of discretion.
Under § 3582(c)(2) the district court is to consider “the factors set forth in section
3553(a)” in determining whether to reduce the movant’s term of imprisonment.
Those factors include “the nature and circumstances of the offense and the history
and characteristics of the defendant[,]” as well as “the need for the sentence
imposed . . . to protect the public from further crimes of the defendant[.]”
18 U.S.C. § 3553(a)(1) and (a)(2)(C). In reaching its decision, the district court
noted that Mr. Ringer’s record of prison misconduct included “two assaults, five
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occurrences of possessing a controlled substance, possession of a dangerous
weapon, two episodes of setting fires, and two misconducts for fighting.”
R., Vol. 1, Doc. 127, at 9. Although Mr. Ringer contends that the incidents
regarding drugs were attempts to self-medicate his mental illness and that the
remaining incidents should be disregarded because they occurred while he was off
his medications, he points to nothing in the record that supports these factual
assertions. Accordingly, we affirm the district court’s denial of relief under
§ 3582(c)(2).
Mr. Ringer’s second argument based on guidelines amendments is that the
district court erred in ruling that Amendment 709 is not retroactive. He
acknowledges that Amendment 709 is not in the list of retroactive amendments
set forth in USSG § 1B1.10(c). He contends, however, that its absence from the
list is immaterial because Amendment 709 is a “clarifying” amendment. But even
if it were a clarifying amendment, a proposition that we doubt, see United States
v. Marler, 527 F.3d 874, 877 n.1 (9th Cir.), cert. denied, 129 S. Ct. 427 (2008);
United States v. Godin, 522 F.3d 133, 135 & n.3 (1st Cir. 2008) (per curiam), we
have observed that
[t]he question whether an amendment to the guidelines is clarifying
or substantive goes to whether a defendant was correctly sentenced
under the guidelines in the first place, not to whether a correct
sentence has subsequently been reduced by an amendment to the
guidelines and can be modified in a proceeding under § 3582(c)(2).
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United States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003). Thus, the
district court did not err in refusing to reduce Mr. Ringer’s sentence under
Amendment 709.
The remainder of Mr. Ringer’s claims seek habeas relief. We will treat his
appeal from the district court’s rulings on these claims as a request to this court to
approve the claims as a second or successive motion under § 2255. See United
States v. Nelson, 465 F.3d 1145, 1148–49 (10th Cir. 2006). 1 We may certify a
second or successive § 2255 motion only if the movant shows the existence of
either
(1) newly discovered evidence that, if proven in light of the evidence
as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant
guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). Here, Mr. Ringer does not point to any newly discovered
evidence with respect to any of his claims. And he relies on no “new” rules of
constitutional law; the three Supreme Court decisions that he cites in his
discussion of his issues all predated his first § 2255 motion, which was filed in
2002, see Castillo v. United States, 530 U.S. 120 (2000); Simpson v. United
1
Because he has already filed one motion under § 2255, there is no potential
for prejudice in characterizing Mr. Ringer’s appeal as a second or successive
§ 2255 motion. See Nelson, 465 F.3d at 1149 (“If the prisoner has filed [one
§ 2255 motion], any future motion will be subject to the same constraints whether
it is a second § 2255 motion or a third.”).
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States, 435 U.S. 6 (1978); Blockburger v. United States, 284 U.S. 299 (1932).
We therefore must decline to certify his claims as proper second or successive
claims.
To the extent that Mr. Ringer’s appellate briefs attack the district court’s
Opinion and Order on his 18 U.S.C. § 3582(c)(2) motion, the Opinion and Order
is AFFIRMED. To the extent that he is seeking permission to file a second or
successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence,
permission is DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
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