                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                September 4, 2009
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 09-5051
 v.                                                     (N.D. of Okla.)
 DARREN LAMAR HARRIS,                         (D.C. No.4:89-CR-00091-TCK-6)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Darren Lamar Harris, a federal prisoner proceeding pro se, appeals the

district court’s denial of his motion filed pursuant to 18 U.S.C. § 3582(c)(2) to

modify his sentence based on Amendment 706 to the United States Sentencing

Guidelines (Guidelines or USSG). We exercise jurisdiction under 28 U.S.C.

§ 1291 and AFFIRM.



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      A jury convicted Harris and several codefendants of conspiring to

knowingly and intentionally distribute cocaine base (crack cocaine). In early

1990, the district court sentenced Harris to 360 months’ imprisonment.

      As a part of sentencing, the Presentence Investigation Report (PSR) found

the conspiracy was responsible for the distribution of at least seven kilograms of

crack cocaine, and the PSR held Harris responsible for this entire amount.

According to the Drug Quantity Table effective at the time, the highest base

offense level for offenses involving controlled substances, USSG § 2D1.1, was 36

for 500 grams or more of crack cocaine. Therefore, after two levels were added

to Harris’s base offense level for possession of a firearm in furtherance of the

conspiracy and two more levels were added for obstruction of justice, Harris’s

offense level became 40. With his criminal history category of IV, his sentencing

range was 360 months to life, and the district court sentenced Harris to 360

months’ imprisonment.

      On appeal, this court affirmed Harris’s conviction but remanded for

resentencing for various reasons. On remand, the district court made additional

findings affecting drug quantities: in particular, that Harris was responsible for

four kilograms of crack cocaine, given the amount of time that Harris was

involved in the conspiracy. The district court concluded, however, that under

USSG § 2D1.1, four kilograms of crack cocaine still resulted in a base offense

                                         -2-
level of 36. With the additional increase of two levels for the possession of the

firearm in furtherance of the conspiracy and two levels for obstruction of justice,

Harris’s total offense level remained 40, and his guideline range remained 360

months to life. The court again sentenced Harris to 360 months, which we

affirmed on appeal. United States v. Harris, 984 F.2d 1095 (10th Cir. 1993).

       In 2009, Harris filed a motion for reduction of sentence pursuant to

§ 3582(c)(2), based on the crack cocaine modification contained in Amendment

706 to the sentencing guidelines. “The Guidelines, through Amendment 706,

generally adjust downward by two levels the base offense level assigned to

quantities of crack cocaine. Amendment 706 took effect November 1, 2007 and

was made retroactive as of March 3, 2008.” United States v. Sharkey, 543 F.3d

1236, 1237 (10th Cir. 2008). The district court denied Harris’s § 3582(c)(2)

motion, however, because it concluded that even after Amendment 706, Harris’s

guideline level remained the same. The district court also denied Harris’s request

for a downward variance pursuant to Kimbrough v. United States, 552 U.S. 85

(2007). 1

       Harris consequently filed the instant appeal.




       1
        Moreover, the district court denied Harris’s motion seeking appointment
of counsel to file his § 3582 motion.

                                         -3-
                                   II. Analysis

      “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) (quotation omitted). “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).”

Sharkey, 543 F.3d at 1238. Additionally, we construe liberally pleadings filed by

pro se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      1. Section 3582 Motion

      Where, as here, a motion for sentence reduction is not a direct appeal or a

collateral attack under 28 U.S.C. § 2255, the merits of the motion depend on 18

U.S.C. § 3582(c). Smartt, 129 F.3d at 540. But § 3582(c) allows the court to

modify a sentence only if the sentencing range is subsequently lowered by the

Sentencing Commission.

      Section 3582(c)(2) states that,

      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 . . . the court may reduce the
      term of imprisonment, after considering the factors set forth in section
      3553(a) to the extent they are applicable, if such a reduction is
      consistent with applicable policy statements issued by the Sentencing
      Commission.

Sharkey, 543 F.3d at 1238–39. The Sentencing Commission’s policy statement

at Guideline § 1B1.10(a)(2)(B) dictates that a reduction of a defendant’s sentence

is not authorized under § 3582(c)(2) if the amended drug-quantity table “does not

                                        -4-
have the effect of lowering the defendant’s applicable guideline range.” Id. at

1239.

        And Amendment 706 had no effect on the guideline range under which

Harris was sentenced, given the large quantity of crack cocaine attributed to

Harris at his resentencing: four kilograms. Indeed, at Harris’s resentencing, the

district court found his base offense level to be 36. Under Amendment 706,

Harris’s base offense level remains 36. Amendment 706 also does not affect

either of the two-level enhancements for possession of a firearm in furtherance of

the conspiracy and obstruction of justice. With his category IV criminal history,

Harris’s guideline range remains 360 months to life. Accordingly, the district

court properly denied Harris’s motion for relief pursuant to § 3582(c)(2) because

Amendment 706 did not lower his sentencing range. See Sharkey, 543 F.3d at

1238–39 (holding a reduction in defendant’s sentence as a career offender was not

authorized under § 3582(c)(2) because Amendment 706 did not lower his

applicable guideline range). 2

        2
         Harris points out that two of his codefendants obtained resentencing
pursuant to Amendment 706. See United States v. Price, 298 F. App’x 779 (10th
Cir. 2008); United States v. Thomas, 297 F. App’x 817 (10th Cir. 2008). In those
cases, we reversed the district court’s denial of the defendants’ § 3582(c)(2)
motions because the court never found a specific drug quantity above 500 grams,
and thus the amendments lowered those defendants’ applicable guideline base
offense levels from 36 to 34. Price, 298 F. App’x at 780–82; Thomas, 297 F.
App’x at 818–19. In contrast, at Harris’s’ resentencing the district court
explicitly found that he and another co-defendant were each responsible for four
kilograms of crack cocaine, rather than simply a quantity “exceeding 500 grams”
                                                                       (continued...)

                                         -5-
      2. Variance

      Harris also sought a downward variance based on the sentencing disparity

between powder and crack cocaine, citing Kimbrough v. United States, 552 U.S.

85 (2007), and the sentencing factors found in 18 U.S.C. § 3553(a). But because

Harris was ineligible for a sentence reduction under Amendment 706, the district

court lacked discretionary authority to reduce his sentence.

      A reduction of a sentence is not authorized by § 3582(c)(2) if the

retroactive amendment does not have the effect of lowering a defendant’s

applicable guideline range. See USSG § 1B1.10(a)(2)(B); see also Sharkey, 543

F.3d at 1239 (“The district court did not resentence Sharkey and therefore had no

occasion to consider the 18 U.S.C. § 3553(a) factors.”). 3 Moreover, Kimbrough

does not provide a separate basis for relief under § 3582(c)(2). See Sharkey, 543

F.3d at 1239 (explaining that we have previously rejected the argument that the

United States v. Booker, 543 U.S. 220 (2005), line of cases provide a separate

basis for relief under § 3582(c)(2)). Finally, to the extent Harris is arguing for a


      2
       (...continued)
of crack cocaine. The applicable sentencing guideline level given this quantity of
crack cocaine has not changed. Therefore, the district court properly denied
Harris’s § 3582(c)(2) motion. We held the same for his codefendant. See United
States v. Leroy, 298 F. App’x 711 (2008).
      3
        Section 3582(c) allows the court to modify a sentence in three limited
circumstances: (1) on motion of the Director of the Bureau of Prisons if special
circumstances exist; (2) if otherwise expressly permitted by statute or Federal
Rule of Criminal Procedure 35; or (3) if the sentencing range is subsequently
lowered by the Sentencing Commission.

                                         -6-
reduction below the amended guideline range, we have rejected such an argument

as well. See United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008), cert. denied,

129 S. Ct. 2052 (2009); see also United States v. Pedraza, 550 F.3d 1218 (10th

Cir. 2008), cert. denied, 129 S. Ct. 2406 (2009).

                                     *   *     *

      For the forgoing reasons, we AFFIRM the judgment of the district court.

We also GRANT the petition to proceed in forma pauperis.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                         -7-
