                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      July 16, 2012
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-6050
          v.                                           (W.D. Okla.)
 CAMERON TAEVON JONES,                        (D.C. No. 5:07-CR-00294-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.




      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.

      Defendant and appellant Cameron Taevon Jones appeals the denial of his

motion under 18 U.S.C. § 3582(c) to reduce his sentence on the basis of a


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
retroactive amendment to the United States Sentencing Commission, Guidelines

Manual (“USSG”). Finding no abuse of discretion in the district court’s denial of

the motion, we affirm.



                                 BACKGROUND

      On July 10, 2007, Oklahoma City police officers were patrolling an area

known for increased drug activity and gang-related violence. While riding in an

unmarked police vehicle, police officers saw a group of individuals, wearing gang

colors, walking in the area. The officers stopped to make contact with the group.

When they did so, an individual (who turned out to be defendant Jones) threw

what appeared to be a wad of papers onto the ground and ran away. The officers

later determined that the discarded item was $257.00 in cash. While running

away, Jones discarded a baggie later determined to contain 29.6 grams of crack

cocaine.

      After a brief chase, Jones was arrested. Police personnel subsequently

determined that Jones was on supervised release following his release from prison

for a 1998 conviction for armed robbery.

      Jones pled guilty in January 2008 to possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). In preparation for sentencing

under the Guidelines, the United States Probation Office prepared a presentence

report (“PSR”). The PSR calculated Jones’s total offense level as 23 which, with

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a criminal history category of III, resulted in a Guidelines sentencing range of

fifty-seven to seventy-one months. There was, however, an applicable sixty-

month statutory mandatory minimum sentence. Jones was thereafter sentenced to

seventy-one months’ imprisonment, to be served consecutively to a twenty-four-

month sentence imposed for violating the conditions of his supervised release by

committing the instant offense.

      In 2010, the Fair Sentencing Act of 2010 (“FSA”) reduced the penalty

disparity between crack cocaine and powder cocaine from a 100:1 ratio to an 18:1

ratio. See Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). The FSA also

directed the Sentencing Commission to revise the Guidelines to reflect the change

in the crack/powder ratios. Accordingly, the Commission promulgated

Amendment 750, which altered the drug-quantity tables in the Guidelines,

“‘increasing the required quantity to be subject to each base offense level in a

manner proportionate to the statutory change to the mandatory minimums

effectuated by the FSA.’” United States v. Osborn, 679 F.3d 1193, 1194 (10th

Cir. 2012) (quoting United States v. Curet, 670 F.3d 296, 309 (1st Cir. 2012)); see

also USSG app. C, amend. 750 (effective Nov. 1, 2011). A subsequent

amendment made Amendment 750 retroactive, permitting defendants like Jones to

move for sentence reductions under 18 U.S.C. § 3582(c)(2). See USSG app. C,

amend. 759 (effective Nov. 1, 2011). Osborn, 679 F.3d at 1194.




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      Accordingly, in 2011, the Probation Office advised the district court that

Jones was eligible for relief under 18 U.S.C. § 3582(c)(2) because of the

retroactive application of Amendment 750 to the crack cocaine guideline. If

granted, this would have the effect of reducing the applicable Guidelines range

from fifty-one to seventy-one months to forty-six to fifty-seven months.

Nonetheless, because the new Guidelines range was below the statutory

mandatory minimum of sixty months, Jones was not eligible for a sentence below

the sixty-month mandatory minimum.

      Jones then filed a motion seeking a reduction in his sentence. The

government did not oppose the motion. The district court responded with an

order, which recited the procedural history of this case, including Jones’s earlier

conviction for armed robbery and his prompt return to criminal activity (some

seven months after being released from prison on the armed robbery conviction)

while on supervised release. This led to both the revocation of his supervised

release and imposition of a new sentence on that basis, as well as the imposition

of the instant sentence for cocaine possession.

      The court then directed the government to address how a reduction in

Jones’s sentence would be both consistent with the sentencing factors set forth in

18 U.S.C. § 3553(a) and serve the public interest. The government responded to

this direction as follows:




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              The government counsel’s decision not to oppose the
       defendant’s Motion [for reduction of sentence] was not made with
       specific reference to § 3553 but was instead guided by two other
       factors. First, there was no legal basis on which to object to the
       Motion. Second, the defendant’s Motion did not appear to minimize
       or leave unaddressed any § 3553 factors that warranted an objection
       or comment from the government. The remaining issues – whether to
       grant relief under § 3582 at all, and if so, to what extent – were
       viewed by the government as being matters exclusively within the
       Court’s considerable sentencing discretion.

Resp. to Order at 2, R. Vol. 1 at 28. The government then stated that Jones was

not “entitled to the Court’s consideration of his request for a sentence reduction,”

after noting that Jones had been “convicted of a violent robbery less than a month

after his 18th birthday,” and that he “managed to complete only 7 months of his

three-year term of supervised release before committing a serious drug offense.”

Id. at 2-3.

       Jones also filed a response to the district court’s order, in which he argued

that a sixty-month sentence would “adequately deter him from criminal conduct.”

Supp. to Mot. at 3, R. Vol. 1 at 32. He pointed out that while his “prior

institutional adjustment was poor . . . [with] numerous infractions,” his current

term of incarceration was “much better,” that he has been involved in programs

and that he has “skills and a goal when released.” Id. at 3-4. Jones opined that

“his own will and the supervision by the United States Probation Office will

provide sufficient protection to the public from further crimes by him.” Id. at 4-

5.


                                          -5-
      In denying Jones’s motion to reduce his sentence, the district court noted

Jones’s improved behavior during his second period of incarceration, as well as

his engagement in “numerous potentially beneficial educational opportunities.”

Order at 3, R. Vol. 1 at 37. After noting that the government’s submissions were

“conspicuously silent as to how a reduction in the defendant’s sentence would be

‘otherwise in the public interest,’” the court ruled as follows:

      The court has . . . carefully considered the § 3553(a) factors, as
      applied to the circumstances now before the court. Although some
      aspects of the defendant’s record during his current term of
      incarceration suggest that he is on a favorable trajectory, and
      although there may be reason to hope that the defendant will, with
      the aid of post-release supervision, redirect his life in a positive,
      constructive direction after he is released from his current
      incarceration, the court, after careful consideration, is unpersuaded
      that application of the § 3553(a) factors favors reduction of the
      defendant’s sentence. The defendant’s history of violence and
      otherwise serious criminal conduct, as described above, speaks for
      itself. The single most predominant sentencing factor in this instance
      is incapacitation. The defendant’s first attempt to redirect his life
      while on supervised release ended with his commission of another
      very serious federal crime a few months after he was released.
      Notwithstanding the defendant’s assurances, . . . the court is unable
      to conclude, with a sufficient confidence level, that the result will be
      different the next time. For that reason, although the court is
      impressed with some aspects of the showing which has been made by
      the defendant, and although the court assuredly does not leap to this
      conclusion, the court has concluded that the public interest is not
      served by shortening the period of time before which the defendant is
      once again released into society.

Id. at 4-5. This appeal followed.




                                          -6-
                                   DISCUSSION

      “We review for an abuse of discretion a district court’s decision to deny a

reduction of sentence under 18 U.S.C. § 3582(c)(2).” Osborn, 679 F.3d at 1195.

Under § 3582(c)(2), a district court has the authority to modify a sentence “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[,] . . . after considering the factors set forth in section 3553(a) to the

extent that they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). The applicable policy statement provides that “‘the court may

reduce the defendant’s term of imprisonment as provided by 18 U.S.C.

§ 3582(c)(2)’ if a reduction is consistent with the policy statement.” Osborn, 679

F.3d at 1195 (quoting USSG § 1B1.10(1)) (emphasis in original).

      As we noted in Osborn, the “application notes to the policy statement give

shape to the court’s discretion” and state that the court “‘shall consider’ the

factors in § 3553 and the nature and seriousness of any threat to public safety in

determining whether a reduction is warranted.” Id. (quoting USSG § 1B1.10,

cmt. n. 1(B)). The court also “may consider” the defendant’s post-sentencing

conduct. Id. (quoting USSG § 1B1.10, cmt. n. 1(B)).

      While both parties agree, as did the district court and as do we, that Jones

was eligible for a sentence reduction, we explicitly stated in Osborn that “an

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ameliorative amendment to the Guidelines in no way creates a right to a sentence

reduction.” Id. at 1196. Rather, any such reduction “falls within the district

court’s discretion.” Id. (quoting United States v. Dorrough, 84 F.3d 1309, 1311

(10th Cir. 1996)).

      Jones argues that the district court erred, and abused its discretion, in

denying a sentence reduction in reliance “on the facts that merited a sentence

first.” Appellant’s Br. at 7. We faced and rejected this identical argument in

Osborn. As we stated there, “the nature and circumstances of the underlying

offense are eminently proper considerations in a motion under § 3582(c)(2).”

Osborn, 679 F.3d at 1196. And while Jones presented evidence of improvements

in his behavior post-sentencing, the district court considered that evidence but

concluded that it did not support a sentence reduction.

      In short, we conclude that the district court acted “well within its

discretion” in denying Jones’s motion to reduce his sentence. Id. We accordingly

affirm its denial.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the denial of Jones’s motion.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge

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