                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 December 15, 2008
                                   TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 08-5049
 v.                                           (D.C. No. 4:90-CR-00131-GKF-2)
                                                         (N.D. Okla.)
 JAMES EDWARD MAHAN,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, KELLY, and McCONNELL, Circuit Judges. **


      Defendant-Appellant James Edward Mahan appeals from the district court’s

denial, in part, of his motion for reduction of sentence pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 706 to the Sentencing Guidelines. Amendment 706

generally adjusted downward by two levels the base offense level applicable to

crack cocaine offenses. United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir.


      *
        This order and judgment is not binding precedent, except under the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.
2008). We affirm.

      By way of background, Mr. Mahan was convicted by a jury of conspiracy

to possess with intent to distribute approximately one kilogram of cocaine base

(crack) pursuant to 21 U.S.C. § 846. In 1991, he was sentenced to 360 months’

imprisonment and five years’ supervised release. I R. Doc. 23 at 2-3. In arriving

at the sentence, the district court utilized a base offense level of 36 given the drug

quantity involved, and enhanced six levels based upon two-level enhancements

for the use of a firearm, for being an organizer, and for obstructing justice.

U.S.S.G. § 2D1.1(c)(2); II R. (PSR) at 5; Doc. 23 at 4. This resulted in a total

offense level of 42, with a criminal history category of I. Doc. 23 at 4. Mr.

Mahan appealed his sentence and this court affirmed. United States v. Mahan,

No. 91-5054, 1992 WL 64888 (10th Cir. Mar. 31, 1992) (unpublished). He then

sought relief pursuant to 28 U.S.C. § 2255; the district court denied relief, and we

denied a certificate of appealability. United States v. Mahan, No. 98-5161, 1999

WL 558396 (10th Cir. July 29, 1999) (unpublished).

      On February 7, 2008, Mr. Mahan, appearing pro se, filed a motion to

modify his sentence under 18 U.S.C. § 3582(c)(2), pursuant to Amendment 706 of

the Sentencing Guidelines. I R. Doc. 48. Mr. Mahan asked the district court to

sentence him based upon an offense level of 34, without any enhancements. Id. at

2-3. He further requested that the court take into account his accomplishments

while in prison, and also vary below any guideline sentence based upon the

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disparity between powder and crack cocaine sentences, relying upon Kimbrough

v. United States, 128 S. Ct. 558 (2007). 1 Id. at 4-6. The district court appointed

counsel, and ordered supplemental briefing. Appointed counsel argued that the

total offense level should be reduced two levels (to 40). Counsel further argued

that because Amendment 706 was only a partial remedy, the district court should

exercise its Kimbrough discretion, reduce the total offense level by another two

levels (apparently to 38), and then sentence Mr. Mahan to time served. I R. Doc.

53 at 4-5. Relying upon the briefs submitted, and without a hearing, the district

court on March 17, 2008, granted a two level reduction pursuant to Amendment

706, and modified the sentence to 292 months, the statutory minimum for an

offense level of 40. I R. Doc. 55. In its brief order, the district court declined to

modify the sentence beyond the two-level reduction. Id. This court has

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Mr. Mahan argues that the district court’s resolution of his motion was

procedurally unreasonable because his request for a variance beyond the two-level

reduction was denied without an explanation. The government argues that we

may only review for plain error, because Mr. Mahan did not object to the


      1
          Mr. Mahan relies on United States v. Hicks, 472 F.3d 1167, 1170-71
(9th Cir. 2007), to suggest that a district court, when entertaining a resentencing
request under § 3582(c)(2), has the discretion to further vary downward beyond
the two-level reduction. We have twice rejected the Hicks case and its reasoning.
United States v. Rhodes, No. 08-2111, slip op. at 13-14 (10th Cir. Dec. 5, 2008);
United States v. Pedraza, No. 08-2062, slip op. at 8-9 (10th Cir. 2008).

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procedure the district court utilized. See United States v. Romero, 491 F.3d 1173,

1177 (2007). Plainly, the district court had a motion before it and, having had his

arguments rejected on the merits, Mr. Mahan was not required to object again.

We need not remand for a fuller explanation of the district court’s decision,

however. In United States v. Rhodes, we held that proceedings under

§ 3582(c)(2) are not de novo resentencings, rather the district court is only

empowered to resentence based upon an amended guideline range, leaving other

sentencing factors unaffected. No. 08-2111, slip op. at 11-15 (10th Cir. 2008)

(analyzing the current revisions to § 1B1.10(b)(1) effective March 3, 2008);

Accordingly, Mr. Mahan’s arguments that the district court should sentence

without the enhancements, or based upon Kimbrough, must be rejected.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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