                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 13, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 08-2229
 v.                                                      (D. of N.M.)
 JOHNNY LEE DAWSON,                               (D.C. No. CR-04-537-RB)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Johnny Lee Dawson, a federal prisoner serving a 188-month sentence for

distribution of crack cocaine, appeals the denial of his motion for a sentence

reduction under 18 U.S.C. § 3582(c). The district court determined that although

recent amendments to the United States Sentencing Guidelines (USSG) lowered

certain base offense levels for crack cocaine crimes, Dawson was ineligible for



      *
         This order and judgment is not binding precedent except under the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.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
resentencing because he was sentenced as a career offender and not under the

recently amended Guideline.

      Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                  I. Background

      In 2004, Dawson pleaded guilty to conspiracy to possess with intent to

distribute and distribution of crack cocaine within 1000 feet of a school,

violations of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846, and 860(a). Dawson’s

presentence report (PSR) attributed 1.8 grams of crack cocaine to these offenses.

The PSR calculated a USSG § 2D1.1 base offense level of 18 for the amount of

cocaine, a 1-level increase under § 2D1.2(a)(2) because the offenses occurred in

close proximity to a school, and a 3-level acceptance of responsibility reduction,

yielding a total offense level of 16. Coupled with Dawson’s criminal history

category of V, the guideline sentencing range would have been 41 to 51 months.

      In light of Dawson’s prior convictions for robbery and cocaine trafficking,

the PSR also recommended a USSG § 4B1.1 career offender enhancement. This

enhancement increased Dawson’s adjusted offense level to 31, after accounting

for the 3-level acceptance of responsibility reduction, and provided for a criminal

history category of VI. The resulting guideline sentencing range was 188 to 235

months’ imprisonment. The district court imposed a 188-month sentence, the low

end of the guideline range.




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      In 2007, the Sentencing Commission amended the Guidelines by providing

a 2-level reduction in base offense levels for certain crack cocaine offenses. See

USSG App. C, Amend. 706 (Reason for Amend.); USSG § 1B1.10(a) and (c),

Amends. 712, 713 (making Amendment 706 retroactive); see USSG § 2D1.1

(incorporating amended base offense levels); see also United States v. Sharkey,

543 F.3d 1236, 1237 (10th Cir. 2008).

      Pursuant to these amendments, Dawson filed a motion under 18 U.S.C.

§ 3582(c)(2), arguing he was entitled to a sentencing reduction as a result of

Amendment 706 to the Guidelines. The district court noted that had Dawson been

sentenced pursuant to USSG § 2D1.1, he would be entitled to the 2-level

reduction to his base offense calculation. The court concluded, however, that

“applying the amended sentencing guidelines d[id] not have the effect of lowering

[Dawson’s] applicable guideline range” because he was sentenced under the

career offender provisions of USSG § 4B1.1. R., Vol. I, Doc. 37 at 4. The court

concluded it was without jurisdiction to modify Dawson’s career offender

sentence because Amendment 706 had no effect on USSG § 4B1.1 and because of

the limited scope of resentencing permitted under § 3582(c)(2). Consequently,

the district court denied Dawson’s motion.

      Dawson now appeals.




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                                    II. Analysis

      Dawson argues the district court erred in failing to reconsider his sentence

in light of the recent amendments to the Guidelines. He concedes our decision in

United States v. Sharkey, 543 F.3d 1236 (10th Cir. 2008), forecloses his

contentions of error, but nevertheless attempts to distinguish his arguments. We

are not persuaded.

      We review the district court’s interpretation of a statute as well as the

sentencing guidelines de novo. Id. at 1238. A district court’s decision to deny a

sentence reduction under 18 U.S.C. § 3582(c)(2), however, is reviewed for an

abuse of discretion. Id. Since this case is not a direct appeal or a habeas petition,

Dawson’s motion depends entirely on § 3582(c)(2). Id. (citing United States v.

Smartt, 129 F.3d 539, 540 (10th Cir. 1997)). Section 3582(c)(2) provides that

when a defendant “has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission . . . the court may reduce the term of imprisonment, after considering

the factors set forth in section 3553(a) to the extent they are applicable, if such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” Id. at 1238–39 (emphasis added) (quoting § 3582(c)).

      This case is on all fours with Sharkey. In that case, the defendant sought a

sentence reduction after having been convicted of distributing crack cocaine

within 1000 feet of a school. Id. at 1238. At sentencing, the district court applied

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the career offender provisions under USSG § 4B1.1 and imposed a 188-month

prison term. Sharkey, 543 F.3d at 1238. We concluded:

            At the time defendant was sentenced, had Amendment 706 been
      in place, it would have lowered by two levels his base offense level
      under § 2D1.1 to 28. However, Amendment 706 had no effect on the
      career offender guidelines in § 4B1.1, which were the guidelines used
      by the district court in sentencing Sharkey. As a result, “a reduction”
      in Sharkey’s term of imprisonment “is not consistent with” the policy
      statement in § 1B1.10 “and therefore is not authorized under 18 U.S.C.
      § 3582(c)(2)” because a two-level reduction in the offense level under
      Amendment 706 “does not have the effect of lowering [his] applicable
      guideline range.” Because Amendment 706 has no effect on the
      Guideline Sharkey was sentenced under, Sharkey’s motion for relief
      pursuant to § 3582(c)(2) was properly denied.

Id. at 1239 (citations omitted).

      Dawson attempts to distinguish his circumstances by arguing that the

original sentencing court in his case had “considered” the now-amended USSG

§ 2D1.1 guideline range as a factor in imposing a sentence at the low end of the

career offender advisory range. Hence, he asserts, his sentence is based—at least

in part—on a guideline range that has been subsequently lowered, thereby

qualifying him for a resentencing proceeding under 18 U.S.C. § 3582(c)(2).

      While the sentencing court may have considered, as one of the 18 U.S.C.

§ 3553(a) factors, the much lower sentencing range that Dawson would have

qualified for in the absence of his status as a career offender, Dawson was

nevertheless sentenced as a career offender. His sentencing range as a career

offender was calculated based on the advisory USSG § 4B1.1 guideline. This


                                         -5-
Guideline has not been lowered by the Sentencing Commission. See Sharkey, 543

F.3d at 1239.

      Because we are unpersuaded by Dawson’s attempts to differentiate his

claims from Sharkey, we apply our binding precedent. United States v. Mitchell,

518 F.3d 740, 752 n. 14 (10th Cir. 2008) (“We are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary decision by

the Supreme Court.”).

      Finally, Dawson claims that post-Booker, an amendment to the Guidelines

triggers a district court’s resentencing authority under § 3582(c)(2) and the

court’s discretion is no longer limited by USSG § 1B1.10. See United States v.

Booker, 543 U.S. 220 (2005) (excising the mandatory provision in 18 U.S.C.

§ 3553(b)(1)). He complains the courts have failed to recognize that the overall

purpose of the amendments to the Guidelines is to minimize the disparity in crack

sentencing. Essentially, he argues the limitations in § 1B1.10 are now “purely

advisory” in light of Booker, and the more recent Supreme Court decisions in

Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128

S. Ct. 586 (2007), and that the district court should have exercised its

resentencing authority to reduce his sentence.

      Prior precedent precludes this argument as well. In United States v.

Rhodes, we concluded that “Booker simply has no bearing on sentencing

modification proceedings conducted under § 3582(c)(2).” 549 F.3d 833, 840

                                          -6-
(10th Cir. 2008), cert. denied, No. 08-8318, 2009 WL 178619 (Apr 27, 2009).

“Booker made no alteration to § 3582(c)(2), which, as noted, provides the

statutory basis for sentence modification proceedings.” Id. More recently, we

reiterated that the limitation on modification proceedings arises not from USSG

§ 1B1.10, but from 18 U.S.C. § 3582(c). United States v. Dryden, --- F.3d ---,

2009 WL 1153690, at *2 (10th Cir. Apr. 30, 2009) (No. 08-3310) (“Section

3582(c) provides that a ‘court may not modify a term of imprisonment once it has

been imposed’ unless a listed exception applies.”). When Amendment 706

changed the base offense levels under USSG § 2D1.1, it did not necessarily

follow that everyone convicted of a crack cocaine offense would be entitled to a

resentencing under § 3582(c)(2). See id. (“It is not enough that the Sentencing

Commission has lowered the offense level for similar offenses—such as

distributing less crack cocaine than the defendant distributed.”). In sum, we find

that nothing in Dawson’s arguments manifests he was entitled to a sentencing

modification.

                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of

Dawson’s motion for resentencing. We further VACATE the order to show




                                         -7-
cause. Appellant’s motion to supplement the record on appeal is GRANTED.


                                   Entered for the Court

                                   Timothy M. Tymkovich
                                   Circuit Judge




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