                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        April 22, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 08-3306
                                                  (D. Ct. No. 2:04-CR-20081-JWL-1)
 MAURICE MONTELL ROBINSON,                                     (D. Kan.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-appellant Maurice Montell Robinson appeals the district court’s denial

of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction

under 28 U.S.C. § 1291, and we 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        This order and judgment is not binding precedent except under the doctrines of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.
                                    I. BACKGROUND

       On October 1, 2004, Mr. Robinson pleaded guilty to three separate counts of

distribution of crack cocaine. He also signed a plea agreement stating “[t]he defendant

agrees that if his sentencing guideline range includes 240 months, then he will not request

a sentence below 240 months in return for the United States agreement to not seek an

enhanced penalty under 21 U.S.C. § 851.”

       The presentence report (“PSR”) calculated his total adjusted offense level under

United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1 as 32.1 Combining an offense

level of 32 with Mr. Robinson’s criminal history category VI yielded a Guidelines range

of 210–262 months. Because Mr. Robinson had three prior convictions for crimes of

violence, he was also considered a “career offender” under U.S.S.G. § 4B1.1(a). His

offense level under § 4B1.1(a) was also 32,2 resulting in the same sentencing range of

210–262 months. Section 4B1.1(b) states that “if the offense level for a career offender . .

. is greater than the offense level otherwise applicable, the [career offender] offense level

. . . shall apply.” Because Mr. Robinson’s offense level was 32 under both § 2D1.1 and

§ 4B1.1, the district court used his § 2D1.1 offense level for purposes of sentencing. On

       1
       Specifically, the PSR attributed 54.22 grams of crack cocaine to Mr. Robinson.
Under U.S.S.G. § 2D1.1(c)(4), this amount qualified him for a base offense level of 32.
Because Mr. Robinson’s drug trafficking involved a “protected location” under U.S.S.G.
§ 2D1.2(a)(1), two levels were added. Then two levels were deducted for acceptance of
responsibility under § 3E1.1(a). Thus, the total adjusted offense level was 32.
       2
       Under U.S.S.G. § 4B1.1, the base offense level for Mr. Robinson as a career
offender was 34. Because of his acceptance of responsibility under § 3E1.1(a), two levels
were deducted, giving an adjusted offense level of 32.

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December 21, 2004, the court sentenced him to 240 months’ imprisonment, in accordance

with his plea agreement.

       On November 1, 2007, the United States Sentencing Commission promulgated

Amendment 706, which provides for a two-level reduction in the base offense level under

U.S.S.G. § 2D1.1(c) for crack cocaine offenses. United States v. Rhodes, 549 F.3d 833,

835 (10th Cir. 2008). On March 3, 2008, the amendment became retroactive. Id. Mr.

Robinson filed this motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) in July

2008, and the district court denied the motion in October. Mr. Robinson timely appeals.

                                    II. DISCUSSION

       Under 18 U.S.C. § 3582(c)(2), a district court may reduce a previously imposed

sentence if (1) it was based on a sentencing range that has since been lowered by the

United States Sentencing Commission, and (2) the reduction “is consistent with

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

§ 3582(c)(2).” The policy statement relevant to this case provides that a reduction “is not

consistent with this policy statement and therefore is not authorized under 18 U.S.C.

§ 3582(c)(2) if” an amendment to the Guidelines “does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

       The district court correctly concluded that Amendment 706 does not lower Mr.

Robinson’s Guidelines range. Although the amendment reduces his offense level under

U.S.S.G. § 2D1.1 from 32 to 30, that reduction triggers application of the career offender

provision of the Guidelines, which produces an offense level of 32. See U.S.S.G.

                                           -3-
§ 4B1.1(b) (“[I]f the offense level for a career offender . . . is greater than the offense

level otherwise applicable, the [career offender] offense level . . . shall apply.”). Thus,

Mr. Robinson’s guidelines range remains at 210–262 months, and Amendment 706 does

not lower his Guidelines range, as required by § 1B1.10(a)(2).

       Mr. Robinson contends that applying § 1B1.10(a)(2) mandatorily violates the Sixth

Amendment, presumably under Booker v. United States, 543 U.S. 220 (2005). He

concedes that our precedent forecloses this argument, see Rhodes, 549 F.3d at 840–41,

but wishes to preserve the issue for further review. We acknowledge that he has raised

the argument here.

       Mr. Robinson also contends that the rule announced in Rhodes “violates the

separation of powers by investing an Article III agency with the power to control the

jurisdiction of the federal courts.” Again, we are bound by that decision. See In re Smith,

10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of prior panels absent

en banc reconsideration or a superseding contrary decision by the Supreme Court.”). We

further note that Mr. Robinson did not argue this point below and has not indicated how

he satisfies plain-error review. See United States v. Torres-Duenas, 461 F.3d 1178, 1180

(10th Cir. 2006) (setting forth plain error standard of review).




                                              -4-
                                III. CONCLUSION

      The denial of Mr. Robinson’s motion for a reduction in his sentence under 18

U.S.C. § 3582(c)(2) is AFFIRMED.



                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Circuit Judge




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