                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     June 23, 2009
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                             Nos. 09-3007, 09-3012,
                                                    09-3013 & 09-3016
    ROBERT EARL JOHNSON;                     (D.C. No. 2:04-CR-20039-CM-JPO)
    CLEVELAND GARRETT;                                    (D. Kan.)
    MARK SCAIFE; JOE GARRETT,

                Defendants-Appellants.


                            ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         Robert Earl Johnson, Cleveland Garrett, Mark Scaife, and Joe Garrett

appeal from orders of the district court denying their individual motions for

sentence reductions pursuant to 18 U.S.C. § 3582(c)(2). Because defendants were

co-defendants in the original district court case and because their appeals raise the



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). These cases are
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
same issues, we will consider their appeals together. We affirm the district

court’s denial of defendants’ § 3582(c)(2) motions.

                                  I. Background

      Defendants are serving terms of imprisonment in federal prison for

distribution of cocaine base, also known as crack cocaine. Mr. Johnson was held

responsible for 13.2 kilograms of crack cocaine and he was sentenced to

78 months in prison. Mr. Cleveland Garrett was held responsible for

35.7 kilograms of crack cocaine and he was sentenced to 70 months in prison.

Mr. Scaife was held responsible for 35.7 kilograms of crack cocaine and he was

sentenced to 168 months in prison. Mr. Joe Garrett was held responsible for

28.9 kilograms of crack cocaine and he was sentenced to 84 months in prison.

      Defendants all individually filed § 3582(c)(2) motions for a reduction in

sentence under guideline Amendment 706, which reset the crack cocaine

guidelines. The district court denied all of the motions, concluding that it lacked

jurisdiction to reduce defendants’ sentences because Amendment 706 did not

lower the guideline range for any of the defendants. Defendants now appeal.

                                   II. Discussion

      We review de novo the district court’s scope of authority in a resentencing

proceeding under § 3582(c)(2). United States v. Rhodes, 549 F.3d 833, 837

(10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (U.S. Apr. 27, 2009).

“We review for an abuse of discretion a district court’s decision to deny a

                                         -2-
reduction in sentence under . . . § 3582(c)(2).” United States v. Sharkey, 543 F.3d

1236, 1238 (10th Cir. 2008).

                               a. Applicable Authority

      Section 3582(c)(2) allows a sentence reduction “in the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission . . . .”

18 U.S.C. § 3582(c)(2). In such a case, “the court may reduce the term of

imprisonment, after considering the factors set forth in section 3553(a) to the

extent that they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.” Id. (emphasis added).

      The applicable policy statement, U.S.S.G. § 1B1.10, provides that where

“the guideline range applicable to [a] defendant has subsequently been lowered as

a result of an amendment to the Guidelines Manual listed in subsection (c) below,

the court may reduce the defendant’s term of imprisonment as provided by

18 U.S.C. § 3582(c)(2).” U.S.S.G. § 1B1.10(a) (2008). Subsection (c) includes

Amendment 706 among the enumerated amendments. Id. § 1B1.10(c).

Amendment 706 generally adjusted downward by two levels the base offense

level assigned to quantities of crack cocaine.

      In determining the extent of any reduction under § 3582(c)(2), “the court

shall determine the amended guideline range that would have been applicable to

the defendant if the amendment(s) to the guidelines listed in subsection (c) had

                                         -3-
been in effect at the time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1).

The policy statement further provides that: “A reduction in the defendant’s term

of imprisonment is not consistent with the policy statement and therefore is not

authorized under 18 U.S.C. § 3582(c)(2) if . . . an amendment listed in subsection

(c) does not have the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added).

                             b. Defendants’ arguments

      At defendants’ initial sentencing, the base offense level for the quantity of

drugs attributable to each defendant was level 38. The new crack cocaine

quantity for a base offense level of 38 is 4.5 kilograms. Because all of the

defendants were held responsible for more than 4.5 kilograms of crack cocaine,

Amendment 706 did not have the effect of lowering their applicable guideline

range. The district court determined that it lacked authority to modify

defendants’ sentences because their base offense level and guideline range

remained the same.

      Defendants first argue that treating U.S.S.G. § 1B1.10 as a jurisdictional

limit violates the Sixth Amendment because it preserves one last mandatory

guideline. Defendants acknowledge that this argument is foreclosed by our

decision in Rhodes, but they respectfully submit that Rhodes was wrongly decided

and the better approach was adopted by the Ninth Circuit in United States v.

Hicks, 472 F.3d 1167 (9th Cir. 2007).

                                         -4-
      The defendants here raise the same arguments as the defendant in Rhodes.

In Rhodes, the defendant relied on Hicks, contending that “the district court erred

in concluding that, in modifying his sentence pursuant to § 3582(c)(2), it lacked

the authority to impose a sentence . . . less than the minimum of the amended

guideline range . . . .” Rhodes, 549 F.3d at 837 (quotation omitted). The

defendant in Rhodes argued further that “because a hearing pursuant to

§ 3582(c)(2) is a new sentencing hearing, Booker is applicable and the

guidelines—including § 1B1.10—must be advisory.” Rhodes, 549 F.3d at 839

(quotation omitted).

      We rejected these arguments as well as the rationale of Hicks:

      [T]he Ninth Circuit, in a decision on which Rhodes now relies, held
      that “Booker’s requirement that the district courts treat the United
      States Sentencing guidelines as advisory applies to the resentencing
      of defendants pursuant to . . . § 3582(c).” [Hicks, 472 F.3d at 1168].
      As a result, the Ninth Circuit concluded, “district courts are
      necessarily endowed with the discretion to depart from the
      Guidelines when issuing new sentences under § 3582(c)(2).”
      Id. at 1170. The problem with the Hicks decision, in our view, is that
      it failed to consider that, as outlined above, sentence modification
      proceedings have a different statutory basis than original sentencing
      proceedings. As a result, the Ninth Circuit erroneously concluded
      that the remedial portion of the Booker decision, which rendered the
      guidelines effectively advisory for purposes of original sentencing
      proceedings, applied to § 3582(c)(2) proceedings as well.

Rhodes, 549 F.3d at 840-41 (footnote omitted). We “conclude[d] that Booker

simply has no bearing on sentencing modification proceedings conducted under

§ 3582(c)(2).” Id. at 840.


                                         -5-
      We went on to consider whether district courts have the authority to

sentence defendants below the amended guideline range in the § 3582(c)(2)

context, or whether they are bound to mandatorily apply § 1B1.10, which

disallows sentence reductions if the amendment “does not have the effect of

lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B). We concluded that § 1B1.10 was mandatory, thereby

divesting district courts of authority to impose a below-Guidelines sentence:

      The Sentencing Commission’s policy statements regarding
      modifications of previously imposed sentences are set forth in
      § 1B1.10. Under the current version of that guideline, the
      Sentencing Commission has clearly indicated that a sentencing court
      shall not, in modifying a previously imposed sentence on the basis of
      an amended guideline, impose a sentence below the amended
      guideline range. Because this policy statement is binding on district
      courts pursuant to § 3582(c)(2), the district court when sentencing
      Rhodes correctly concluded that it lacked the authority to impose a
      modified sentence that fell below the amended guideline range.

Rhodes, 549 F.3d at 841 (emphasis added).

      We reaffirmed our holding in Rhodes in United States v. Pedraza, 550 F.3d

1218 (10th Cir. 2008), cert. denied, 2009 WL 811581 (U.S. May 18, 2009).

In Pedraza, we explained that

      [l]ike Mr. Pedraza, Mr. Rhodes disputed the extent of the
      resentencing judge’s authority to reduce his sentence. He argued that
      after Booker, the sentencing judge had the authority not only to
      reduce his sentence to the amended guidelines range but to reduce it
      even further if the § 3553(a) factors so warranted a variance. We
      rejected this position. Although Booker excised from the statute
      § 3553(b)(1), which had mandated that judges impose
      within-guidelines sentences in original sentencings, we noted that

                                        -6-
      Booker had not touched § 3582(c)(2), which covers sentence
      modification proceedings. A resentencing proceeding is an entirely
      different animal that does not implicate the Sixth Amendment
      concerns that drove the Booker remedy. After our holding in Rhodes,
      therefore, Mr. Pedraza’s argument that Booker and the Sixth
      Amendment mandate discretion to impose a below-guidelines
      sentence at resentencing has been settled: they do not.

550 F.3d at 1220 (citation omitted; emphasis added).

      Defendants acknowledge in their briefs that their argument has been

foreclosed by our precedent and that this panel is bound by the decisions of prior

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

Supreme Court. But Defendants point out that there is a circuit split on this issue

because of Hicks and that they are filing the instant appeals to preserve their

ability to benefit from Supreme Court review of this question. After the filing of

these appeals, however, the Supreme Court denied certiorari in Rhodes and

Pedraza. Accordingly, defendants’ argument on this issue is foreclosed by our

prior precedent, as there has been no intervening en banc decision in this court or

a superseding contrary decision by the Supreme Court. See In re Smith, 10 F.3d

723, 724 (10th Cir. 1993) (per curiam).

      Defendants next argue that the jurisdictional limit in § 1B1.10

impermissibly invests the Sentencing Commission with power to determine which

cases the federal courts have jurisdiction to consider. Because this argument was

not raised in any of defendants’ motions for reduction of sentence, our review is

for plain error. See United States v. Dryden, 563 F.3d 1168, 1170 (10th Cir.

                                          -7-
2009). In Dryden, which was issued after briefing was completed on these

appeals, the defendant raised the same issue that defendants raise here. See id.

We rejected defendant’s argument, holding that § 1B1.10 does not create an

unconstitutional restraint on resentencing jurisdiction because the language of

§ 1B1.10(a)(2) “is merely a paraphrase of Congress’s own language.” Dryden,

563 F.3d at 1170-71. As with defendants’ first argument, this argument has been

foreclosed by our precedent.

      The district court properly denied defendants’ motions for reduction of

sentence under § 3582(c)(2). The judgments of the district court are AFFIRMED.


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




                                         -8-
