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

                                      TENTH CIRCUIT                   December 3, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,
              Plaintiff - Appellee,
                                                            No. 13-6246
v.                                                  (D.C. No. 5:03-CR-00148-D-1)
TIMOTHY DEWAYNE KINCHION, SR.                               (W.D. Okla.)

             Defendant - Appellant.



                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY, and PHILLIPS, Circuit Judges.


         Timothy Dewayne Kinchion, Sr. appeals the district court’s denial of his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court

denied his motion, concluding that Amendment 750 to the Sentencing Guidelines

did not lower his sentencing range because his 2003 conviction involved too

much cocaine base to qualify for relief. Kinchion does not contest this ruling.

Instead, he attempts to use § 3582(c)(2) to collaterally attack his original

sentence under the Fifth and Eighth Amendments. We have no authority to grant

relief on Kinchion’s constitutional claims. As we explained in United States v.



     *
     This order and judgment is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Court Rule 32.1.
Gay, No. 13-6247, 2014 WL 5840303, (10th Cir. Nov. 12, 2014), district courts

have limited jurisdiction under § 3582(c)(2) to reduce sentences. That jurisdiction

does not reach collateral attacks on a defendant’s sentence, whether on

constitutional grounds or otherwise. We exercise jurisdiction under 28 U.S.C. §

1291 and affirm.


                                  BACKGROUND


       In July 2003, a federal grand jury indicted Kinchion and charged him with

three crimes: (1) conspiring to possess with intent to distribute about one

kilogram of cocaine powder, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1(B); (2) possessing about one kilogram of cocaine powder with intent to

distribute it, in violation of §§ 841(a)(1) and 841(b)(1)(B); and (3) possessing a

firearm “during and [sic] relation to” a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A). 1 R. supp. vol. 1. at 4. On October 23, 2003, a jury

convicted Kinchion of all three counts. In response to a special interrogatory on

the verdict form, the jury found that Kinchion: (1) conspired to possess with

intent to distribute between 500 grams and five kilograms of cocaine powder; (2)

possessed with intent to distribute between 500 grams and five kilograms of

cocaine powder; and (3) carried a firearm during and in relation to a drug

trafficking crime.


   1
      While 18 U.S.C. § 924(c)(1) actually prohibits possession of a firearm “in
furtherance of” a drug trafficking crime, the charging disparity is not at issue in this
appeal.
                                         -2-
       Applying the 2003 Sentencing Guidelines, the probation office prepared a

final presentence report (“PSR”). The PSR found that Kinchion’s relevant

conduct amounted to one kilogram of cocaine base. The PSR calculated

Kinchion’s base offense level using cocaine base instead of cocaine powder

because “he was aware that the cocaine powder he possessed . . . was to be

cooked . . . into cocaine base.” R. vol. 2 at 5. At sentencing, the district court

found that the evidence from trial was sufficient to hold Kinchion “accountable

for crack cocaine.” R. vol. 1 at 87. This relevant conduct of one kilogram of

cocaine base resulted in a base offense level of 36. 2 U.S. Sentencing Guidelines

Manual § 2D1.1 (2003) (amended 2014). The PSR assessed two additional

offense levels under § 3C1.2 for recklessly creating a substantial risk of death or

serious bodily injury to another person in the course of fleeing from a law

enforcement officer. Based on these calculations, the PSR arrived at a total

offense level of 38. This offense level, combined with Kinchion’s criminal

history category of III, resulted in a guideline range of 292 to 365 months.


       Kinchion raised several objections to the PSR, including to the drug

computation. The court overruled his objections. On September 9, 2004, the court


   2
     In 2003, the threshold weight of cocaine base to reach base offense level 36 was 500
grams. In 2007, Amendment 706 to the Sentencing Guidelines raised this amount to 1.5
kilograms. In 2010, Amendment 750 again raised the amount, this time to 2.8 kilograms.
For sentences after November 1, 2014, under Amendment 782 to the Sentencing
Guidelines, the amount of cocaine base again was raised to 8.4 kilograms for base offense
level 36. The Commission has made the new amendment retroactive, but with the
requirement that reduced sentences cannot take effect until November 1, 2015.
                                          -3-
sentenced Kinchion to 292 months of imprisonment on Counts 1 and 2, to run

concurrently, and 60 months’ imprisonment on Count 3, to run consecutively.

This resulted in a total sentence of 352 months of imprisonment. The sentence

was imposed between the Supreme Court’s decisions in Blakely v. Washington,

542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). Kinchion

raised a Blakely argument, but the district court overruled it. Aware that Booker

was pending, however, the district court imposed an alternative sentence as well.

The alternative sentence set a term of 10 years of imprisonment for Count 1, and

10 years for Count 2, to run concurrently, and 5 years for Count 3, to run

consecutively.

      The Supreme Court decided Booker four months later, rendering the

Sentencing Guidelines advisory. Booker, 543 U.S. at 250–58. Because Kinchion

had preserved this issue on appeal, this court remanded the case for resentencing,

declining to impose the alternative sentence without first allowing the district

court to reconsider the sentence post-Booker. United States v. Kinchion, 201 F.

App’x 606, 611–12 (10th Cir. 2006). On remand, the district court again imposed

its original sentence of 352 months. Kinchion appealed again, and this court

vacated the sentence a second time for procedural error because the district court

had “applied a presumption of reasonableness to the Guidelines sentence.” United

States v. Kinchion, 271 F. App’x 799, 803 (10th Cir. 2008).

      By the time the district court reconsidered Kinchion’s sentence after the

second remand, the Sentencing Commission had promulgated Amendment 706 to

                                       -4-
the Sentencing Guidelines. 3 United States v. Kinchion, 337 F. App’x 743, 745

(10th Cir. 2009). Under this amendment, the Sentencing Commission reduced the

base offense level for offenses involving a kilogram of cocaine base from level

36 to level 34. As the district court recognized, this change reduced Kinchion’s

advisory guideline range to 235 to 293 months for the drug convictions. Id.

Accordingly, finding a reduced sentence appropriate, the court resentenced

Kinchion to 235 months on Counts 1 and 2, to run concurrently, and 60 months

on Count 3, to run consecutively. On appeal, this court affirmed the sentence.

Kinchion, 337 F. App’x at 746.

       In 2010, in response to the Fair Sentencing Act, the Sentencing

Commission promulgated Amendment 750, which reduced the base offense levels

for various quantities of crack cocaine. U.S. Sentencing Guidelines Manual app.

C, amend. 750 (2011). Specifically, as pertains to Kinchion’s case, Amendment

750 altered the range for base offense level 34 from 500 grams to 1.5 kilograms

of cocaine base, to 840 grams to 2.8 kilograms. Id. § 2D1.1(c)(1) (2007)




   3
      In 2007, frustrated by the statutory mandatory minimum sentences, the Sentencing
Commission reduced the base offense level by two for most weights of controlled
substances through Amendment 706. In 2008, with Congress’ acquiescence, the
Commission made the base offense level reduction retroactive. U.S. Sentencing Comm’n,
Supplement to the 2007 Guidelines Manual 55–56 (2008). Amendment 706 resulted in
the cocaine powder-base ratio falling to about 33:1 for base offense level 38 (the highest
base offense level). However, Amendment 706 did not create a uniform ratio across the
offense levels. Instead, the guidelines under Amendment 706 “advance[d] a crack/powder
ratio that varie[d] (at different offense levels) between 25 to 1 and 80 to 1.” Kimbrough v.
United States, 552 U.S. 85, 106 (2007).
                                           -5-
(amended 2014). With Congress’s acquiescence, the Sentencing Commission

applied Amendment 750 retroactively. See id. app. C, amend. 759 (2011).

      In response to Amendment 750, Kinchion filed a motion under 18 U.S.C. §

3582(c)(2) for a sentence reduction. The district court denied his motion. It

concluded that it lacked authority to alter Kinchion’s sentence because applying

Amendment 750 would not change his base offense level. Simply put, Kinchion’s

relevant conduct involving one kilogram of cocaine base remained at base offense

level 34 even after Amendment 750. A sentence reduction under § 3582(c)(2) is

not authorized if an amendment “does not have the effect of lowering the

defendant’s applicable guideline range.” U.S. Sentencing Guidelines Manual §

1B1.10(a)(2)(B) (2013).


                                 DISCUSSION


A. Kinchion’s Claims and Legal Theories

      Kinchion contends that the “continued enforcement of the sentence of

confinement derived through the application of the punishment differential for

cocaine base violates the Fifth’s Amendment’s due process guarantee.”

Appellant’s Br. at 11. He also argues that the “continued enforcement of a

sentence contrived in contravention of the Sixth Amendment and effectuating a

repudiated punishment formula presents an extraordinary case of grossly

disproportionate punishment that traduces the protections of the Eighth

Amendment.” Id. at 20.

                                      -6-
B. No Authority to Hear Constitutional Challenges in § 3582(c)(2) Proceedings

       We review de novo the scope of a district court’s authority to resentence a

defendant in a § 3582(c)(2) proceeding. United States v. Williams, 575 F.3d 1075,

1076 (10th Cir. 2009). Kinchion fails to tie his constitutional challenges to his

motion for a sentence reduction under § 3582(c)(2), the matter heard in district

court and the only possible basis for this appeal. Instead, he protests that Booker 4

has not been given retroactive effect and consequently that his “resentencing left

intact the sentence derived through a patently Constitutionally flawed process.”

Appellant’s Br. at 13. If we do not apply Booker here, he states, then “the

sentence he is serving still enforces the fundamental error that prompted the

Court to find the guidelines unconstitutional in Booker.” Id. at 16. Even after

acknowledging that Booker is not applied retroactively, he asks this court to

reverse our clearly established precedent and apply it retroactively. See Dillon v.

United States, 560 U.S. 817, 828 (2010) (rejecting an argument in a § 3582(c)(2)

proceeding that, under Booker, the district court should have resentenced the

defendant under the advisory guidelines and adjusted his criminal history

category). Moreover, we do not see how he can deny that the district court would




   4
     In Booker, the Supreme Court found that the mandatory nature of the Sentencing
Guidelines violated the Sixth Amendment right of criminal defendants to be tried by a
jury and to have every element of their offense proven by a reasonable doubt. 543 U.S. at
235, 243–44. To remedy the problem, the Supreme Court rendered the Guidelines
advisory by invalidating certain provisions of the Sentencing Reform Act. Id. at 259. It
concluded that the remainder of the Guidelines is constitutional. Id.
                                          -7-
have been quite willing to give him the benefit of Amendment 750’s 18:1 ratio if

the new ratio, in fact, served to lower his sentencing range.

       Kinchion’s challenge amounts to a collateral attack on his sentence,

seeking relief beyond that allowed in a § 3582(c)(2) proceeding. See United

States v. Price, 438 F.3d 1005, 1006–07 (10th Cir. 2006) (finding no authority to

consider Booker relief in a § 3582(c)(2) proceeding after noting that courts may

modify a defendant’s sentence only when Congress has expressly given

jurisdiction to do so); United States v. Smartt, 129 F.3d 539, 542–43 (10th Cir.

1997) (finding no jurisdiction in a § 3582(c)(2) appeal to consider the effect of

counsel’s failure to request safety-valve relief, as this relief should be addressed

in a 28 U.S.C. § 2255 motion). We find nothing in the limited congressional grant

of authority to modify sentences provided by § 3582(c)(2) that would allow

Kinchion to challenge the constitutionality of his sentence. As all convicted

defendants, he must do so on direct appeal or in a § 2255 petition.

      We reiterate that “[a] judge’s resentencing authority is a creation of statute

. . . .” United States v. Pedraza, 550 F.3d 1218, 1220 (10th Cir. 2008). “[A]

district court is authorized to modify a [d]efendant’s sentence only in specified

instances where Congress has expressly granted the court jurisdiction to do so.”

Price, 438 F.3d at 1007 (emphasis in original) (quoting United States v. Green,

405 F.3d 1180, 1184 (10th Cir. 2005)). Under § 3582(c)(2), a court may only

grant a sentence reduction for a defendant whose sentencing range “has

subsequently been lowered by the Sentencing Commission. . . .” 18 U.S.C. §

                                        -8-
3582(c)(2). This limited jurisdiction is a “narrow exception to the usual rule of

finality of judgments . . . .” Pedraza, 550 F.3d at 1220. Section 3582(c)(2)

proceedings are “narrow” in scope and authorize “only a limited adjustment to an

otherwise final sentence and not a plenary resentencing proceeding.” Dillon, 560

U.S. at 826; see also United States v. Washington, 759 F.3d 1175, 1181 (10th Cir.

2014) (“[W]e begin by recognizing [that] the modification procedure set out in §

3582(c)(2) is carefully constrained.”). Kinchion fails to recognize the limited

scope of review afforded by § 3582(c)(2).

      Our authority in a § 3582(c)(2) proceeding is limited to reviewing the

district court’s determination of whether a sentence reduction is authorized

because it would have the effect of lowering the defendant’s applicable guideline

range. See U.S. Sentencing Guidelines Manual § 1B1.10(a)(2)(B) (2013).

Applying Amendment 750 to Kinchion’s case would change neither his base

offense level nor—correspondingly—his applicable guideline range.

      Finally, we note that even if Kinchion had authority to challenge the

constitutionality of his sentence under § 3582(c)(2), his constitutional claims

would fare poorly under our precedent. See United States v. Gay, No. 13-6247,

2014 WL 5840303, at *3 (10th Cir. Nov. 12, 2014) (finding court had no

authority to hear Eighth Amendment challenge in § 3582(c)(2) proceeding);

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

circuit precedent, court rejected defendant’s argument that the 100:1 disparity for

cocaine powder and cocaine base violated the Eighth Amendment).

                                       -9-
                                   CONCLUSION


      The district court did not err in finding that Kinchion was ineligible for a

sentence modification under § 3582(c)(2). Accordingly, we affirm the district

court’s order denying relief under § 3582(c)(2).




                                          ENTERED FOR THE COURT



                                          Gregory A. Phillips
                                          Circuit Judge




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