                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       June 29, 2010
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-6294
 v.                                                    (W.D. Oklahoma)
 MICHAEL DUANE RABIEH,                          (D.C. No. 5:07-CR-00058-C-2)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      After examining the briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Accordingly, the case is ordered submitted without oral argument.

      Proceeding pro se, Michael Duane Rabieh appeals the district court’s denial

of the Motion for Modification of Sentence he brought pursuant to 18 U.S.C.

§ 3582(c)(2). In 2007, Rabieh pleaded guilty to distributing methamphetamine, in


      *
        This order and judgment is not binding precedent except under the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.
violation of 21 U.S.C. § 841(b)(1)(C). United States v. Rabieh, 259 F. App’x

143, 143 (10th Cir. 2007). Despite a provision in the plea agreement waiving the

right to appeal or collaterally attack his conviction and sentence, Rabieh filed a

direct appeal. Id. This court granted the Government’s motion to dismiss the

appeal, concluding Rabieh knowingly and voluntarily entered into the plea

agreement. Id. at 145. When the district court thereafter enforced the waiver and

denied Rabieh’s 28 U.S.C. § 2255 motion, this court denied his request for a

certificate of appealability. United States v. Rabieh, 327 F. App’x 71, 74 (10th

Cir. 2009).

      Rabieh then filed the § 3582(c)(2) motion that is the subject of this appeal.

In his motion, Rabieh argued his sentence should be modified based on changes

made to the United States Sentencing Guidelines by Amendments 493, 506, and

709. See United States v. Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003)

(“Under 18 U.S.C. § 3582(c)(2), a court may reduce a previously imposed

sentence if the Sentencing Commission has lowered the applicable sentencing

range and ‘such a reduction is consistent with applicable policy statements issued

by the Sentencing Commission.’”). The district court concluded it did not have

authority under § 3582(c)(2) to grant Rabieh the relief he sought. The court

reasoned that Amendments 493 and 506 became effective before Rabieh was

sentenced, thus neither subsequently lower his sentencing range. Further,

Amendment 709 could not be considered as a basis for a sentence reduction

                                         -2-
because it is not retroactive. Accordingly, the district court concluded it had no

power under § 3582(c)(2) to modify Rabieh’s sentence. The district court also

rejected Rabieh’s Booker claims, noting he was sentenced after Booker was

decided and further concluding the claims raised are not cognizable in a

§ 3582(c)(2) motion. See Dillon v. United States, No. 09-6338, 2010 WL

2400109, at *8-*9 (U.S. June 17, 2010); United States v. Sharkey, 543 F.3d 1236,

1239 (10th Cir. 2008) (“Booker does not provide a basis for a sentence reduction

under § 3582(c)(2).” (quotation and alteration omitted)). In the alternative, the

court concluded the claims Rabieh sought to raise in the § 3582(c)(2) motion fell

within the scope of the waiver in his plea agreement which he entered into

knowingly and voluntarily. See United States v. Hahn, 359 F.3d 1315, 1327 (10th

Cir. 2004) (en banc).

      Rabieh filed the instant appeal, challenging the district court’s denial of his

§ 3582(c)(2) motion. Having reviewed the record, the appellate briefs, and the

applicable law, we conclude the denial of Rabieh’s § 3582(c)(2) motion was

clearly correct. Accordingly, the district court’s order denying Rabieh motion is

affirmed for substantially the reasons stated in the district court’s order dated

December 11, 2009.




                                         -3-
Rabieh’s motion to proceed in forma pauperis on appeal is granted.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




                                      -4-
