FILED
United States Court of Appeals
Tenth Circuit
February 15, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-3171
v. D. Kansas
SAMMY NICHOLS, (D.C. No. 2:03-CR-20149-KHV-DJW-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this court 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).
Accordingly, the case is ordered submitted without oral argument.
In 2004, Appellant Sammy Nichols pleaded guilty to conspiracy to
distribute and possess with intent to distribute cocaine. At sentencing, the district
court found Nichols was responsible for 22.7 kilograms of cocaine base. After
*
This order and judgment is not binding precedent except under the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.
making additional findings relating to Nichols’s offense conduct, the court
determined his total offense level was forty-one, his criminal history category was
VI, and his advisory guidelines range was 360 months to life. The court imposed
a 360-month sentence.
In 2012, Nichols filed a motion pursuant to 18 U.S.C. § 3582(c)(2) with the
district court. In his motion, Nichols argued his sentence should be modified
based on changes made to the United States Sentencing Guidelines by
Amendment 750. See United States v. Torres-Aquino, 334 F.3d 939, 940 (10th
Cir. 2003) (“Under 18 U.S.C. § 3582(c)(2), a court may reduce a previously
imposed sentence if the Sentencing Commission has lowered the applicable
sentencing range and ‘such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.’”). Amendment 750
retroactively “altered the drug-quantity tables in the Guidelines, increasing the
required quantity to be subject to each base offense level.” United States v.
Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012) (quotation omitted).
The district court noted that Amendment 750 raised the minimum threshold
amount of cocaine base for an offense level of thirty-eight from 4.5 kilograms to
8.4 kilograms. See U.S.S.G. § 2D1.1(c)(1). Nichols’s conspiracy offense
involved 22.7 kilograms of cocaine base which, at the time of his sentencing,
corresponded to a base offense level of thirty-eight. Because Nichols’s offense
conduct involved more than 8.4 kilograms of cocaine base, his base offense level
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was not altered by Amendment 750. The district court, thus, concluded it did not
have authority under § 3582(c)(2) to grant Nichols the relief he sought because
Amendment 750 did not have the effect of lowering his applicable guidelines
range. See U.S.S.G. § 1B1.10(a)(2).
Proceeding pro se, Nichols appeals the district court’s ruling that he is not
eligible for resentencing pursuant to 18 U.S.C. § 3582(c)(2). Having reviewed
the record, the appellate briefs, and the applicable law, we conclude the district
court did not err in concluding it lacked authority to grant Nichols’s § 3582(c)(2)
motion. Accordingly, the district court’s disposition of Nichols’s motion is
affirmed for substantially the reasons stated in the district court’s memorandum
and order dated June 20, 2012. Nichols’s request to file an untimely reply brief
and his motion to proceed in forma pauperis on appeal are both granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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