                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                October 27, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 10-6012
 v.                                            (D.C. No. 5:98-CR-00029-L-2)
                                                       (W.D. Okla.)
 DELMAR ANTON ZEIGLER,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before GORSUCH and EBEL, Circuit Judges, and ARGUELLO **, District
Court Judge.


      Shortly after Delmar Anton Zeigler was indicted on various drug and gun

charges, the government filed an information pursuant to 21 U.S.C. § 851(a). In

that document, the government announced that, in light of Mr. Zeigler’s prior

drug felony convictions, it would seek to invoke 21 U.S.C. § 841(b)(1)(A) and


      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent except under the doctrines of law of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.
      **
        The Honorable Christine M. Arguello, United States District Court
Judge, District of Colorado, sitting by designation.
secure a mandatory term of life in prison for Mr. Zeigler should he be convicted

under his current indictment.

      Mr. Zeigler elected to proceed to trial, where the jury found him guilty of

possessing crack cocaine with intent to distribute. At sentencing, the district

court agreed with the government that it was bound by 21 U.S.C. § 841 to impose

two concurrent life sentences, and we affirmed the sentence on appeal. See

United States v. McKissick, 204 F.3d 1282 (10th Cir. 2000). Over the next five

years, Mr. Zeigler pursued and lost repeated collateral challenges to his

conviction and sentence under 28 U.S.C. § 2255.

      In the current case, initiated some nine years after his conviction, Mr.

Zeigler initially attempted a different tack. Mr. Zeigler filed a motion under 18

U.S.C. § 3582(c)(2), arguing he was entitled to a reduced sentence under

Amendment 706 of the Sentencing Guidelines. That Amendment effectively

reduces crack cocaine sentences by two base levels. But the district court

correctly rejected this motion, holding that § 3582 has no application to Mr.

Zeigler’s case. This is because § 3582(c)(2) empowers a district court to modify

only sentences based on a sentencing range subsequently lowered by the

Sentencing Commission. And, of course, the Sentencing Commission does not

have the authority to override a statute that, as here, imposes a mandatory

minimum term of imprisonment. See United States v. Smartt, 129 F.3d 539, 542

(10th Cir. 1997).

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      Now before us, Mr. Zeigler does not contest the district court’s ruling that

he is ineligible for a sentence reduction under § 3582(c)(2). Indeed, Mr. Zeigler

himself concedes that the district court lacked authority to reduce his sentence

under § 3582. See Opening Br. at 9, 10. Instead, Mr. Zeigler seeks to pursue a

very different argument, one that he never raised before the district court and one

that doesn’t sound in § 3582 at all. He seeks to argue that Congress’s statutory

scheme mandating his life imprisonment violates the Eighth Amendment

prohibition against cruel and unusual punishment.

      Any such collateral challenge to a federal prisoner’s sentence, however,

must be brought under the rubric prescribed by 28 U.S.C. § 2255; a prisoner

cannot use the appellate process to evade the strictures and limits of the § 2255

process. Under United States v. Nelson, 465 F.3d 1145 (10th Cir. 2006), we may

therefore treat Mr. Zeigler’s putative appeal for what it is — “an implied

application to this court for leave to file a second [or successive] § 2255 motion.”

Id. at 1149.

      Doing just that, we deny the application. Mr. Zeigler has not satisfied

§ 2255(h)’s requirements for a second or successive motion, having identified no

newly discovered evidence or constitutional rule retroactively applicable to his

case. To the contrary, this court has consistently rejected the very sort of Eighth

Amendment challenge Mr. Zeigler seeks to make before us. See, e.g., United

States v. Williams, 576 F.3d 1149, 1165 (10th Cir. 2009) (rejecting an Eighth

                                        -3-
Amendment challenge to concurrent life sentences imposed for two cocaine

convictions); United States v. Brooks, 161 F.3d 1240, 1247 (10th Cir. 1998)

(Eighth Amendment is not violated by the sentencing disparity between crack and

powder cocaine); United States v. Bell, No. 09-6281, 2010 WL 2676366, at *1

(July 7, 2010) (unpublished).

      Treating Mr. Zeigler’s appeal as a request for authorization to proceed with

a successive motion attacking the legality of his sentence, that request is denied

and this appeal is dismissed.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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