                                                                                       FILED
                                                                           United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                       TENTH CIRCUIT                               July 25, 2012

                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
v.                                                             No. 12-6038
                                                       (D.C. No. 5:08-CR-00303-F-1
CAROLYN ANN BELL,                                            (D. W.D. Okla.)

               Defendant - Appellant.




                      ORDER GRANTING PANEL REHEARING
                     AND AMENDING ORDER AND JUDGMENT


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       This matter is before the court on the United States' Petition For Limited Panel

Rehearing. Upon consideration, the request is granted. The Order & Judgment filed

originally on July 6, 2012, is vacated, and the clerk is directed to issue the attached

amended decision in its place. The new Order & Judgment shall issue nunc pro tunc to

the original filing date.

                                           Entered by the Court:


                                           Terrence L. O’Brien
                                           United States Circuit Judge
                                                                                     FILED
                                                                         United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                      TENTH CIRCUIT                              July 06, 2012

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
v.                                                            No. 12-6038
                                                      (D.C. No. 5:08-CR-00303-F-1
CAROLYN ANN BELL,                                           (D. W.D. Okla.)

              Defendant - Appellant.




                              ORDER AND JUDGMENT*


Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.


       Carolyn Ann Bell, a federal prisoner proceeding pro se,1 appeals from the district

court’s denial of her motion for reduction of sentence brought under 18 U.S.C. §

3582(c)(2). History reveals her persistence in attempting to assert rights to which she is


       *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
       1
        Because Bell proceeds pro se, we construe her pleadings liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Ledbetter v. City of Topeka, Kan., 318 F.3d 1183,
1187 (10th Cir. 2003).
not entitled or clearly waived in her plea agreement.

       Pursuant to a plea agreement, Bell pled guilty to possession with intent to

distribute fifty or more grams of cocaine base or crack. Since she was a career offender,

she was sentenced to 262 months of imprisonment and a five-year term of supervised

release.2 Despite having agreed not to appeal, she did. We dismissed her direct appeal

based on the waiver of appeal rights contained in her plea agreement. United States v.

Bell, 343 Fed. Appx. 376, 377 (10th Cir. 2009). Later, and despite her agreement not to

do so, she filed a motion under 28 U.S.C. § 2255 collaterally attacking the sentence. The

district court denied her motion. She appealed and sought a Certificate of Appealability

(“COA”). We denied a COA; again because of the waivers contained in her plea

agreement. United States v. Bell, 437 Fed. Appx. 658, 665 (10th Cir. 2011).3



       2
         Bell was accountable for 253.26 grams of crack cocaine. The sentence imposed
took into account that amount of the drug. A three-level adjustment for acceptance of
responsibility lowered her total offense level to 34 under the Sentencing Guidelines.
With a criminal history category of VI, her advisory Guidelines range was 262 to 327
months of imprisonment.
       3
        In our previous thorough analysis of Bell’s plea agreement relative to her § 2255
appeal, we quoted the waiver provision:

                     Defendant also understands that the Court has
              jurisdiction and authority to impose any sentence within the
              statutory maximum for the offenses(s) to which she is
              pleading guilty. Defendant further understands that Title 28,
              United States Code, Section 1291, and Title 18, United States
              Code, Section 3742, give her the right to appeal the judgment
              and sentence imposed by the Court. Acknowledging all this,
              defendant in exchange for the promises and concessions made
              by the United States in this plea agreement, knowingly and
              voluntarily waives her right to:


                                           -2-
       In 2010, Congress enacted the Fair Sentencing Act of 2010 (“FSA”), Pub. L. 111-

220, 124 Stat. 2372 (2010). Among other things, it significantly reduces the sentencing

disparity between crack and powder cocaine. Later in 2010, as required by the FSA, the

Sentencing Commission amended the Sentencing Guidelines to reflect the change. See

U.S.S.G. § 2D1.1(c) (2010). In her § 3582(c)(2) motion, Bell claims to be eligible for

what would amount to a retroactive sentence reduction because of the change to the

guideline.4 The district court denied her motion. She renews her arguments in this, her

third appeal, but they are untenable for at least three reasons.

       First, her plea agreement specifically precludes her not only from collaterally

attacking her sentence under § 2255 but also from seeking to modify it under §

3582(c)(2). See supra note 3. Our previous analysis of Bell’s plea-agreement waiver of

her § 2255 rights applies with equal force to preclude relief on her § 3582(c)(2) motion.

See Bell, 437 Fed. Appx. at 661-64.


                     ....

                    b. Appeal, collaterally challenge, or move to modify
              under 18 U.S.C. § 3582(c)(2) or some other ground, her
              sentence imposed by the Court and the manner in which the
              sentence is determined, provided the sentence is within or
              below the advisory guideline range determined by the Court
              to apply to this case. Defendant acknowledges that this
              waiver remains in full effect and is enforceable, even if the
              Court rejects one or more of the positions [on sentencing
              agreed to by the parties].

Bell, 437 Fed. Appx. at 661-62 (emphasis added).
       4
        18 U.S.C. § 3582(c)(2) permits sentence reductions when the Guidelines
sentencing range has been lowered as permitted by 28 U.S.C. § 994(o).


                                             -3-
       Second, the FSA does not apply retroactively to individuals sentenced before it

became effective, August 3, 2010. Dorsey v. United States, 132 S. Ct. 2321, 2335-36

(2012); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010), cert. denied, 131 S.

Ct. 1790 (2011). Bell’s crimes were committed in 2008, and she was sentenced in 2009.

In addition, the Sentencing Commission’s implementing the FSA with retroactive

Amendment 750, effective November 1, 2011, does not help Bell because she is a career

offender.

       Third, Bell’s arguments regarding the guideline changes now reflected in U.S.S.G.

§ 2D1.1(c) misapprehend the significance of the career-offender guideline, U.S.S.G. §

4B1.1. “Under the policy statement, a sentence reduction is not authorized if the

amendment at issue ‘does not have the effect of lowering the defendant’s applicable

guideline range.’” United States v. Corber, 596 F.3d 763, 766 (10th Cir. 2010) (quoting

U.S.S.G. § 1B1.10(a)(2)(B)), cert. denied, 131 S. Ct. 897 (2011). In Corber, we affirmed

the district court’s denial of the defendant’s § 3582(c)(2) motion based on the subsequent

sentence reduction for crack cocaine, because the defendant was a career offender; “the

district court had no authority to reduce the sentence.” Id. Concerning Bell’s career-

offender status, the district court noted: “Her conviction in this case, based on conduct

that occurred in November, 2008, was her fourth conviction for criminal conduct relating

to distribution of cocaine or crack cocaine.” (R. Vol. 1 at 17.) Because Bell is a career

offender, her sentence would not change even if a sentence reduction for her crack

cocaine crime were possible, which it clearly is not.

       Bell claims the district court had discretion to reduce her sentence. As we have

                                           -4-
explained, she is wrong. She also claims judicial bias in not granting her § 3582(c)(2)

motion. Her arguments regarding that claim are contrived and insulting, the last refuge of

the truly desperate. We will not dignify them with further discussion. In any event, they

matter not because the court had no authority to grant the relief she seeks.

       This is the fourth time Bell has filed motions with the district court contrary to the

terms of her plea agreement and the third appeal she has brought contrary to that

agreement. Enough is enough. Further motions and appeals may well result in filing

restrictions or other sanctions.

       We deny Bell’s motion to appoint counsel on appeal and all of her other motions

that may remain unresolved.

       AFFIRMED.

                                           Entered by the Court:


                                           Terrence L. O’Brien
                                           United States Circuit Judge




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