FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8038
(D.C. No. 2:11-CR-00132-NDF-1)
MATTHEW CAMPOS, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
In 2011, Matthew Campos pled guilty to being a felon in possession of a firearm
and to unlawfully distributing methamphetamine. The district court sentenced Mr.
Campos to 70 months in prison. In 2015, he moved the court for a reduced sentence
under 18 U.S.C. § 3582(c)(2), which authorizes district courts to reduce previously
imposed sentences in limited circumstances. The district court denied the motion. Mr.
*
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 This order and judgment is not binding precedent,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.
Campos appeals from that ruling. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. BACKGROUND
On December 7, 2011, Mr. Campos pled guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 1), and to unlawfully
distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) (Count 2). His
plea agreement recommended he receive two concurrent sentences of 60 months in
prison.
The U.S. Probation Office’s Guidelines calculation in its Presentence Investigation
Report (“PSR”) determined the base offense levels for both Count 1 and Count 2 to be
20. The PSR added a two-level multiple count enhancement under U.S.S.G. § 3D1.4,
and subtracted three levels to account for Mr. Campos’s acceptance of responsibility, for
a final offense level of 19 for both Count 1 and Count 2. With Mr. Campos’s criminal
history category of V, the PSR calculated the recommended Guidelines range to be 57-71
months for each count.
The district court adopted the PSR’s Guidelines calculations and sentenced Mr.
Campos to two concurrent 70-month sentences, which were within the Guidelines range
but above the 60 months recommended in his plea agreement. Mr. Campos did not
appeal his sentence.
On May 12, 2015, Mr. Campos filed a motion in district court under 18 U.S.C.
§ 3582(c)(2), seeking a reduction in his sentence under Amendment 782 to the
Guidelines. The district court denied Mr. Campos’s motion because Amendment 782
-2-
would not change his Guidelines range. Mr. Campos filed a timely notice of appeal on
June 15, 2015.
II. DISCUSSION
On appeal, Mr. Campos asserts the district court erred by (1) concluding
Amendment 782 would not reduce his Guidelines range; (2) applying a multiple count
enhancement during sentencing in 2011; (3) failing to appoint counsel for him on his
§ 3582(c) motion; and (4) failing to consult the Sentencing Commission before denying
his motion. Because the district court did not err, we affirm.
A. Amendment 782
The district court denied Mr. Campos’s motion as to Amendment 782 because the
amendment would not change his Guidelines sentencing range. We agree.
Section 3582(c)(2) permits district courts to reduce a prisoner’s sentence “that has
subsequently been lowered by the Sentencing Commission . . . if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.” The
Sentencing Commission’s policy statement on reducing sentences based on amendments
to the Guidelines disallows reductions when “an amendment listed in subsection (d) does
not have the effect of lowering the defendant’s applicable guideline range.” U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10(a)(2)(B) (U.S. Sentencing
Comm’n 2014). Amendment 782 is listed in U.S.S.G. § 1B1.10(d) and does not lower
Mr. Campos’s applicable Guidelines range.
-3-
Amendment 782 reduces by two levels the base offense levels of crimes involving
many of the controlled substances listed in the Guidelines’ Drug Quantity Table in
U.S.S.G. § 2D1.1(c). See U.S.S.G. app. C, Amend. 782.
As the district court explained, Amendment 782 would reduce the base offense
level for Count 2 by two levels because Count 2 involves a controlled substance listed in
the Drug Quantity Table. But this level reduction would not affect the Guidelines range,
which was calculated in this case based on the combined offense level of Counts 1 and 2
under U.S.S.G. § 3D1.4. The combined offense level is calculated by first separating
multiple factually unrelated offenses into groups, which the district court did by
separating Count 1 and Count 2. See id. § 3D1.1. Next, the court determines “the
offense level applicable to each Group.” Id. Then the “combined offense level is
determined by taking the offense level applicable to the Group with the highest offense
level . . . .” Id. § 3D1.4. Here, at the initial sentencing, the district court determined the
combined offense level to be 20 because both groups had identical offense levels of 20.
Even if Amendment 782 would reduce Count 2’s base offense level from 20 to 18, the
highest offense level, for Count 1, would still be 20. This would result in the same
combined offense level and the same Guidelines range the district court originally
calculated. Id.
The district court also applied a two-level enhancement under § 3D1.4 for multiple
counts that are within five offense levels of each other. Amendment 782 would not affect
this two-level enhancement either because, even if it reduced the offense level for Count
-4-
2 from 20 to 18, this base offense level is still within five offense levels of the base
offense level of 20 for Count 1. Id.
Because application of Amendment 782 does not change the base offense level for
Count 1, and thus does not change Mr. Campos’s Guidelines range, we affirm the district
court’s denial of Mr. Campos’s motion.
B. Multiple Count Enhancement
Mr. Campos next argues the district court erred by employing the multiple count
enhancement under § 3D1.4 at his original sentencing hearing in 2011. Because
challenges to a sentencing court’s procedures can be raised only on direct appeal or in a
motion under 28 U.S.C. § 2255, Mr. Campos’s argument is not properly before this court.
See United States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003).
C. Appointing Counsel
Mr. Campos next asserts the district court erred by failing to appoint counsel. This
argument fails because he has no right to appointment of counsel beyond his direct appeal
from his conviction. No right to counsel extends to a § 3582(c)(2) motion. See
Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008); United States v. Carrillo, 389
F. App’x 861, 863 (10th Cir. 2010) (unpublished); United States v. Olden, 296 F. App’x
671, 674 (10th Cir. 2008) (unpublished).1
1
Although these cases are unpublished and therefore not precedential, we cite
them for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).
-5-
D. Consulting the Sentencing Commission
Mr. Campos finally argues the district court erred by failing to consult the
Sentencing Commission before denying his § 3582(c)(2) motion. Because he cites to no
authority suggesting this would be a required, much less proper procedure, we affirm.
III. CONCLUSION
The district court correctly held it lacked authority under § 3582(c)(2) to reduce
Mr. Campos’s sentence under Amendment 782. Mr. Campos’s challenge to the
procedures the district court used to calculate his original Guidelines range is not
properly before this court. We deny his motion to appoint counsel for his § 3582(c)(2)
motion. Finally, the district court was not required to consult the Sentencing
Commission. We affirm.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
-6-