                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 17, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-6129
 v.                                            (D.Ct. No. 5:93-CR-00181-R-1)
                                                        (W.D. Okla.)
 WENDELL LAMONT WILLIAMS,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Senior Circuit Judges.



      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-Appellant Wendell Lamont Williams, a federal inmate appearing

pro se, appeals the district court’s denial of his motion brought pursuant to 18

      *
         This order and judgment is not binding precedent except under the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.
U.S.C. § 3582(c)(2) for the purpose of modifying his sentence based on

Amendment 706 to the United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



                       I. Factual and Procedural Background

      On February 14, 1994, pursuant to a plea agreement, Mr. Williams pled

guilty to conspiracy to possess with intent to distribute and to distribute cocaine

base (crack) in exchange for dismissal of the remaining counts of a superseding

indictment. See United States v. Williams, 145 F.3d 1347, 1998 WL 292444, at

*1 (10 th Cir. May 26, 1998) (unpublished op.). Prior to sentencing, a probation

officer prepared a presentence report recommending a base offense level of thirty-

eight based on conduct involving 2.664 kilograms of crack cocaine. In addition,

the probation officer increased Mr. Williams’s base offense level for his

managerial role in the conspiracy and declined to recommend a reduction, given

his failure to take responsibility for his conduct. See id. The resulting total

offense level was forty-one, which, together with a criminal history category of

III, resulted in a sentencing range of 360 months to life imprisonment. On May

23, 1994, the district court sentenced Mr. Williams to 360 months imprisonment

and five years supervised release, see id., resulting in a projected release date of

May 23, 2024.




                                          -2-
      Mr. Williams did not appeal his conviction or sentence. See id. Thereafter,

he sought relief under 28 U.S.C. § 2255, which the district court denied. See id.

On May 26, 1998, this court denied Mr. Williams a certificate of appealability on

his § 2255 motion and dismissed his appeal. See id. at **1-2. On April 21, 2008,

at Mr. Williams’s request, the district court appointed him counsel for the purpose

of filing a motion under 18 U.S.C. § 3582 for retroactive application of

Amendment 706 to the Guidelines. Thereafter, on June 27, 2008, Mr. Williams

and the government entered into a joint motion for retroactive application of

Amendment 706 for a two-level reduction of Mr. Williams’s base offense level,

resulting in a total offense level of thirty-nine and a recommended sentence of

324 months imprisonment, for a new projected release date of July 9, 2017.



      Attached to the joint motion was a preliminary report for considering a

sentence reduction based on Amendment 706. The section of the report called

“Institutional Adjustment” showed at least twenty disciplinary infractions

committed by Mr. Williams while in prison, and the section called “Educational

Programs” reported his completion of eight educational programs while

incarcerated. The twenty institutional infractions, which occurred from October

1994 through March 2008, included possession of drugs or drug items,

intoxicants, and unauthorized items and resulted in a total of nine instances of

disciplinary segregation.

                                         -3-
      After considering the joint motion, the district court issued an order

recognizing Mr. Williams’s participation in several educational programs but also

acknowledging his “long list of institutional infractions, many of which are

serious.” Based on his record at that time, it stated it would deny his motion but

would give him an opportunity “to show he can conduct himself appropriately

while incarcerated” and would “stay” his motion until July 7, 2012, when it would

“review again [his] institutional adjustment to determine whether or not a

sentence reduction is appropriate.”



      Almost a year later, on June 3, 2009, Mr. Williams filed a pro se motion

pursuant to 18 U.S.C. § 3582, again requesting a two-level reduction under

Amendment 706. On June 15, 2009, the district court issued another order, noting

that since its initial order on Mr. Williams’s original § 3582 motion he had

committed yet another institutional infraction, on April 20, 2008. Based on Mr.

Williams’s misconduct during his incarceration, it denied the motion, stating

again it would reconsider it after July 7, 2012.



                                   II. Discussion

      Mr. Williams now appeals the denial of his motion for a reduction of his

sentence, claiming the district court erred in denying him relief pursuant to 18

U.S.C. § 3582(c)(2) based on his post-rehabilitation history, which he claims has

                                          -4-
nothing to do with lowering his sentence under the 18 U.S.C. § 3553(a)

sentencing factors. We disagree.



      In making our determination, “‘[w]e review de novo the district court’s

interpretation of a statute or the sentencing guidelines.’” United States v. Brown,

556 F.3d 1108, 1111 (10 th Cir.) (quoting United States v. Smartt, 129 F.3d 539,

540 (10 th Cir. 1997)), cert. denied, 130 S. Ct. 219 (2009). “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).” Id. (relying on United States v. Dorrough, 84

F.3d 1309, 1311 (10 th Cir. 1996)). At issue is Amendment 706 to the Guidelines

which modified the drug quantity thresholds in U.S.S.G. § 2D1.1(c), the Drug

Quantity Table, thereby lowering the sentencing range so that “[c]rack cocaine

offenses for quantities above and below the mandatory minimum threshold

quantities ... [were] adjusted downward by two levels.” U.S.S.G., Supp. to App.

C, Amend. 706 at 230 (Reason for Amend.). The relevant part of § 3582, on

which Mr. Williams brought his motion for a reduction of sentence and the

district court relied in denying his motion, states:

      [I]n 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 pursuant to 28 U.S.C. [§]
      994(o), ... the court may reduce the term of imprisonment, 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.

                                          -5-
18 U.S.C. § 3582(c)(2) (emphasis added). Thus, the subsequent modification of

the Guidelines pursuant to Amendment 706 does not make mandatory a

sentencing reduction under § 3582. Instead, it gives the district court discretion

to determine whether to make such a reduction after considering the applicable

§ 3553(a) sentencing factors. See Brown, 556 F.3d at 1111. In this case, the

district court clearly considered those sentencing factors when it looked at Mr.

Williams’s record of disciplinary infractions during his incarceration, including

the fact he incurred an additional infraction since its last order. Based on those

infractions, and as an obvious means of deterring his misconduct and encouraging

his compliance with penal rules, it denied Mr. Williams’s motion, indicating it

would consider a reduction at a later date – July 7, 2012 – well before the

projected new release date of July 9, 2017. Under these circumstances, we cannot

say the district court abused its discretion under 18 U.S.C. § 3582(c)(2).



                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s order denying

Mr. Williams’s motion filed pursuant to 18 U.S.C. § 3582(c)(2). We also DENY

the government’s motion to dismiss. 1 We further caution Mr. Williams that

      1
          Prior to denying Mr. Williams’s § 3582 motion, the district court stated
“[i]f the Court ruled today it would deny the motion based on [Mr. Williams’s]
institutional conduct. The Court may grant the motion if he successfully
completes the stay the Court previously imposed.” Based on these statements and
                                                                       (continued...)

                                         -6-
should he file any future appeals on the application of Amendment 706 to the

Guidelines prior to July 7, 2012, we may order him to show cause as to why his

appeal should not be summarily dismissed on the same grounds as addressed in

this appeal.

                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




      1
        (...continued)
the fact Mr. Williams did not file his notice of appeal until June 29, 2009, the
government filed a motion to dismiss on timeliness and finality grounds. We
reserved judgment on the government’s motion pending our disposition of the
appeal on the merits.

       We now address and reject both the government’s timeliness and finality
arguments. First, the district court issued its order on June 15, 2009, so that the
notice of appeal was not due until June 29, 2009. See Fed. R. App. P. 26(a)(2)
(2009) (in computing any period of time specified in the Rules “[e]xclude
intermediate Saturdays, Sundays, and legal holidays when the period is less than
11 days, unless stated in calendar days”). As a result, Mr. Williams timely filed
his appeal on June 29, 2009. Next, while the district court left open the
possibility that relief may be granted in the future, it nevertheless clearly stated at
the conclusion of its order it “denied” Mr. Williams’s motion. Thus, we conclude
the district court’s order is final for the purposes of this appeal.

                                          -7-
