                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 16, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-2170
                                               (D.C. No. 1:02-CR-00084-WJ-1)
    BERNIE BANUELOS,                                      (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, McKAY, and BALDOCK, Circuit Judges.



         Defendant Bernie Banuelos appeals the reduced sentence that the district

court imposed pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the

provisions of the Sentencing Guidelines for offenses involving certain quantities

of cocaine base (“crack cocaine”). Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                          I.

      Following a jury trial, Mr. Banuelos was convicted of distributing less than

100 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);

possessing with intent to distribute five grams or more of cocaine base in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and conspiracy to distribute a

substance containing cocaine base in violation of 21 U.S.C. § 846. In sentencing

proceedings, the district court did not accept Mr. Banuelos’s argument that his

classification as a career offender over-represented his prior criminal conduct. It

sentenced Mr. Banuelos to 324 months of imprisonment on each of the

convictions relating to crack cocaine, with the sentences running concurrently.

The convictions and sentences were upheld on appeal. United States v. Banuelos,

117 F. App’x 692, 702 (10th Cir. 2004).

      Later, “the United States Sentencing Commission promulgated Amendment

706, which is retroactive and generally provides a two-level reduction in the base

offense level for crack cocaine offenses under [U.S.S.G.] § 2D1.1(c).” United

States v. Darton, 595 F.3d 1191, 1193 (10th Cir.), cert. denied, __ S. Ct__,

2010 WL 1991552 (2010). Mr. Banuelos therefore filed a motion to reduce his

sentence. See 18 U.S.C. § 3582(c)(2) (providing for modification of imposed

“term of imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission”). His motion also argued that he should




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be sentenced below the amended guideline range because he was improperly

found to be a career offender.

      The district court determined that Mr. Banuelos was eligible for a sentence

reduction and that the applicable amended sentencing range was 262 to 327

months, down from the original range of 324 to 405 months. As a result, the

court reduced Mr. Banuelos’s sentence to 262 months of imprisonment. But the

district court concluded that it lacked authority to consider a below-guideline

sentence when ruling on an 18 U.S.C. § 3582(c)(2) motion.

                                           II.

      Mr. Banuelos appealed, arguing that the reasoning of United States v.

Booker, 543 U.S. 220 (2005), allows district courts to consider a below-guideline

sentence in a § 3582(c)(2) proceeding. This issue, concerning “[t]he scope of a

district court’s authority in a . . . proceeding under § 3582(c)(2)[,] is a question of

law that we review de novo.” United States v. Rhodes, 549 F.3d 833, 837

(10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).

      And, as the district court recognized, this court has previously resolved the

issue. We have held that Booker, which rendered the guidelines advisory to

remedy the Sixth Amendment problems associated with a mandatory sentencing

scheme, does not apply to § 3582(c)(2) proceedings. Rhodes, 549 F.3d at 841.

Further, the Sentencing Commission’s policy statements regarding § 3582(c)(2)

modifications of previously imposed sentences do not allow a sentencing court to

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impose a sentence below the amended guideline range. Id. (citing U.S.S.G.

§ 1B1.10, the applicable policy statement). Similarly, we have stated that the

Sentencing Commission is vested with the authority “to define the extent to which

a judge may reduce a sentence” in a § 3582(c)(2) proceeding and Booker does not

“mandate discretion to impose a below-guidelines sentence” in this type of

proceeding. United States v. Pedraza, 550 F.3d 1218, 1220 (10th Cir. 2008),

cert. denied, 129 S. Ct. 2406 (2009). See also United States v. Williams, 525 F.3d

1075, 1078 (10th Cir. 2009) (rejecting Booker argument in appeal of district

court’s determination that it lacked authority to impose below-guideline sentence

in § 3582(c)(2) proceedings), cert. denied, __ S. Ct. __, 2010 WL 2471094

(June 21, 2010).

      While Mr. Banuelos’s appeal was pending in this court, the Supreme Court

provided the definitive analysis of the issue. Dillon v. United States,

No. 09-6338, 2010 WL 2400109 (U.S. June 17, 2010). In fact, defense counsel

has submitted a supplemental authority recognizing Dillon’s “pertinent and

significant impact on the issues raised by Mr. Banuelos in this appeal.” Supp’l

Auth. at 1.

      In Dillon, the Court disapproved a characterization of a § 3582(c)(2) matter

as a “sentencing or resentencing proceeding” Id., 2010 WL 2400109, at *5. In

harmony with our previous cases, the Court stated that sentence modification

pursuant to § 3582(c)(2) is not “constitutionally compelled” and instead

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“represents a congressional act of lenity intended to give prisoners the benefit of

later enacted adjustments to the judgments reflected in the Guidelines.” Id., at

*7. The Court emphasized that § 3582(c)(2) “permits a sentence reduction within

the narrow bounds established by the [Sentencing] Commission.” Id., at *9.

“The relevant policy statement instructs that a court proceeding under

§ 3582(c)(2) ‘shall substitute’ the amended Guidelines range for the initial range

‘and shall leave all other guideline application decisions unaffected.’” Id.

(quoting U.S.S.G. § 1B1.10(b)(1)). Only “the aspects of [the] sentence . . .

affected by the Commission’s amendment to § 2D1.1” are within the “scope of

the proceeding authorized by § 3582(c)(2).” Id.

      Accordingly, the district court properly determined that it lacked discretion

or authority to consider Mr. Banuelos’s request for a below-guideline sentence.

The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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