                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS January 30, 2009
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-2114
          v.                                           (D. New Mexico)
 LLOYD TAPLIN,                                 (D.C. No. 1:03-CR-01293-WJ-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and GORSUCH, Circuit Judges.



      In 2003, Lloyd Taplin pleaded guilty to three counts of distribution of crack

cocaine, in violation of 21 U.S.C. § 841(b)(1)(C). Utilizing the career offender

provisions set out in U.S.S.G. § 4B1.1, rather than the crack cocaine provisions

set out in U.S.S.G. § 2D1.1, the district court sentenced Taplin to a term of

imprisonment of 151 months. In a series of amendments to the Sentencing

Guidelines adopted in late 2007 and early 2008, the United States Sentencing

Commission decreased by two levels the base offense level assigned to quantities


      *
        This order and judgment is not binding precedent except under the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.
of crack cocaine in § 2D1.1 and made that change retroactive to those previously

sentenced under § 2D1.1. United States v. Sharkey, 543 F.3d 1236, 1237 (10th

Cir. 2008) (setting out history of Amendments 706 and 713 of the Sentencing

Guidelines). Soon thereafter, Taplin filed a motion, pursuant to 18 U.S.C.

§ 3582(c), for a reduction in his sentence pursuant to Amendments 706 and 713.

The district court denied the motion, concluding Taplin was not entitled to relief

because his base offense level was set under the career offender guideline, rather

than the crack cocaine guideline. Thus, this appeal presents the following pure

question of law: Did the district court err in concluding Taplin was not entitled to

relief under § 3582(c) because Taplin’s offense level was set by application of the

§ 4B1.1 career offender guideline, rather than the crack cocaine provisions set out

in U.S.S.G. § 2D1.1?

      In a decision issued after the briefing was complete in this case, we

resolved this exact question. Sharkey, 543 F.3d at 1239. Sharkey holds that when

a defendant’s base offense level is set under the § 4B1.1 career offender

guideline, the defendant is not entitled to a reduction in his sentence pursuant to

Amendment 706 and § 3582(c). Id. It further holds that neither the decision in

United States v. Booker, 543 U.S. 220 (2005), nor in Kimbrough v. United States,

128 S. Ct. 558 (2007), alter that outcome. Sharkey, 543 F.3d at 1239.

      As Sharkey makes clear, the district court correctly denied Taplin’s

§ 3582(c) motion for a reduction in his sentence. Thus, the order of the United

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States District Court for the District of New Mexico denying Taplin’s § 3582(c)

motion is hereby AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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