                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 6, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3232
 v.                                          (D.C. No. 2:92-CR-20063-02-JWL)
                                                        (Dist. Kan.)
 LEALON MULDROW,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



      Lealon Muldrow was convicted in 1993 of possessing 4.29 kilograms of

crack cocaine with the intent to distribute it. His total offense level was 42,

which, when combined with his criminal history category of V, yielded a

proposed sentence under the Guidelines of between 360 months to life




      *
         After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is 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order and judgment is not binding precedent except under the doctrines of law of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.
imprisonment. The district court ultimately sentenced Mr. Muldrow to a term of

360 months.

         In 2008, Mr. Muldrow filed a pro se motion under 18 U.S.C. § 3582(c)(2),

arguing that he was eligible for a reduced sentence under Amendment 706 of the

Sentencing Guidelines. The Amendment effectively reduces crack cocaine

sentences by two base levels, see U.S.S.G. App. C Supplement, Amendment 706

(Nov. 1, 2007), and it applies retroactively, see id. at Amendment 713 (Mar. 3,

2008).

         In his pro se motion, Mr. Muldrow also requested that the district court,

when resentencing him pursuant to Amendment 706, reconsider two sentencing

enhancements made in the course of his original sentence (one associated with the

fact Mr. Muldrow committed his crime in proximity to a school; the other for

obstruction of justice). Mr. Muldrow further asked the court to reconsider his

sentence in light of the fact that, since the time of his original sentencing hearing,

the Guidelines have been declared advisory rather than mandatory. See United

States v. Booker, 543 U.S. 220 (2005).

         The district court denied Mr. Muldrow’s motion. First, it found that, even

with application of the Amendment, he still faced the same sentencing range, and

was thus ineligible for a sentence reduction under section 3582(c)(2). Second,

having denied resentencing under section 3582(c)(2), the court concluded it




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lacked authority to reopen and reconsider aspects of his original sentence

unrelated to Amendment 706. This appeal followed. 1

                                         ***

      We review a district court’s decision to deny a reduction in sentence under

18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Dorrough, 84

F.3d 1309, 1311 (10th Cir. 1996). Section 3582(c)(2) states that “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 . . . the court may reduce the term of imprisonment, after considering

the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable,




      1
        Mr. Muldrow’s notice of appeal was filed outside the 10-day period
prescribed by Rule 4(b)(1)(A), but within the permissible 30-day extension
period. Mr. Muldrow asked for an extension of time, and a panel of this court
remanded the matter to the district court to determine if there was good cause or
excusable neglect for the delay sufficient to satisfy Rule 4(b)(4). The district
court entered an order finding good cause, and extending the deadline for Mr.
Muldrow to file his appeal to August 13, 2008 – the date the notice of appeal was
filed. Because the government does not contest timeliness, we have no reason to
question the district court’s order. See United States v. Garduno, 506 F.3d 1287,
1291 (10th Cir. 2007) (Rule 4(b)’s timeliness requirement is a claim processing
rule which may be forfeited if not properly raised by the government).

       We note additionally that Mr. Muldrow’s motion for appointment of
counsel, filed along with his notice of appeal, is denied. See Coronado v. Ward,
517 F.3d 1212, 1218 (10th Cir.), cert. denied, 129 S.Ct. 134 (2008) (“There is no
constitutional right to counsel beyond the direct appeal of a criminal conviction”);
see also United States v. Olden, 2008 WL 4596336 (Oct. 15, 2008) (same result
when appealing denial of § 3582 motion).

                                         -3-
if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” (emphasis added).

      In turn, the Sentencing Commission’s policy statement at U.S.S.G.

§ 1B1.10(a)(2)(B) provides that a reduction “is not consistent with this policy

statement,” and therefore not authorized under 18 U.S.C. § 3582(c)(2), when “an

amendment listed in subsection (c) does not have the effect of lowering the

defendant’s applicable guidelines range.” U.S.S.G. § 1B1.10(a)(2)(B) (emphasis

added). Because Amendment 706 is listed in subsection (c), in deciding whether

a section 3852(c)(2) reduction is appropriate, the first question we must ask is

whether application of the Amendment would have the effect of lowering Mr.

Muldrow’s applicable Guidelines range.

      Had Amendment 706 been in place at the time of Mr. Muldrow’s original

sentencing, it would have lowered by two levels his base offense level to 36,

rather than 38. Even so, Amendment 706 would have had no effect on the

remaining enhancements Mr. Muldrow received (a two-level adjustment

associated with conducting drug activities near a school under U.S.S.G.

§ 2D1.2(a)(1) (Nov. 1, 1992), and another two-level adjustment for obstruction of

justice under U.S.S.G. § 3C1.1 (Nov. 1, 1992)), which together would have

brought his base level to 40. When combined with his criminal history category

of V, an offense level of 40 would have still resulted in Mr. Muldrow’s

Guidelines sentencing range being 360 months to life in prison – that is, exactly

                                        -4-
the same as it was without application of Amendment 706. Because Mr.

Muldrow’s Guidelines range is thus unchanged by application of Amendment 706,

he is ineligible for relief under section 3582(c)(2). See U.S.S.G. § 1B1.10(b)(1);

United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (district court did

not abuse its discretion in denying section 3582(c)(2) motion, where other

Guidelines provisions produced an offense level which did not alter the

Guidelines range from that originally determined by the sentencing court).

      Mr. Muldrow argues that, even if he is ineligible for relief under section

3582(c), the district court should have reconsidered his other sentencing

enhancements. But, by its terms, section 3582(c)(2) forecloses the district court

from reconsidering any other Guidelines applications not specifically listed in

subsection (c). U.S.S.G. § 1B1.10(b)(1) (Supp. May 1, 2008). And neither Mr.

Muldrow’s enhancement for conducting drug transactions near a school nor his

enhancement for obstructing justice are listed in subsection (c). We have

previously held in a similar situation that section 3582(c)(2) permits a court only

to consider whether a defendant is entitled to a two-level offense reduction under

Amendment 706, and “not to reevaluate his sentence under the Guidelines.”

United States v. Leroy, No. 08-5088, 2008 WL 4636725, at *3 (10th Cir. Oct. 21,

2008) (unpublished); see also United States v. Smartt, 129 F.3d 539, 542-43 (10th

Cir. 1997) (district court does not have jurisdiction under section 3582 to consider

collateral sentencing issues).

                                         -5-
       Mr. Muldrow further asserts that the district court erred in refusing to

reconsider his sentence in light of the Supreme Court’s intervening decision in

Booker and the renewed importance of the sentencing factors enumerated in 18

U.S.C. § 3553(a). But because the district court lacked authority under section

3582(c)(2) to resentence him, it correctly held, consistent with our binding

precedents, that it had “no occasion to consider the 18 U.S.C. § 3553(a) factors.”

Sharkey, 543 F.3d at 1239; see also United States v. Price, 438 F.3d 1005, 1007

(10th Cir. 2006) (“[E]ven if Booker could be read to be an implicit lowering of

[defendant’s] sentencing range, § 3582(c)(2) only expressly allows a reduction

where the Sentencing Commission, not the Supreme Court, has lowered the

range.”).

                                                                           Affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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