                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 25, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-6003
          v.                                           (W.D. Oklahoma)
 AUBREY MURPHY, SR.,                             (D.C. No. CR-97-00137-L-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and EBEL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

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

therefore ordered submitted without oral argument.

      Defendant and appellant Aubrey Murphy, Sr. pled guilty pursuant to a plea

agreement to conspiracy to possess with intent to distribute and to distribute

cocaine base (crack cocaine) from June 1996 through July 1997, in violation of 21


      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 846. On August 18, 1998, he was sentenced to 222 months’

imprisonment, followed by five years of supervised release. This court affirmed

his sentence on direct appeal. United States v. Murphy, No. 98-6341, 1999 WL

181402 (10th Cir. April 2) (unpublished), cert. denied, 528 U.S. 884 (1999). On

December 6, 2000, the district court denied Mr. Murphy’s 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. Mr. Murphy did not appeal

that denial.

      On January 17, 2008, Mr. Murphy filed a pro se motion pursuant to 18

U.S.C. § 3582(c)(2), seeking to modify his sentence by means of the retroactive

application of Amendment 706 to the United States Sentencing Commission,

Guidelines Manual (“USSG”) § 2D1.1(c), which lowered the Drug Quantity Table

two levels for offenses involving crack cocaine. See USSG § 2D1.1 (Nov. 1,

2007); USSG Supp. to App’x C, Amend. 706; United States v. Sharkey, 543 F.3d

1236, 1237 (10th Cir. 2008) (“The Guidelines, through Amendment 706,

generally adjust downward by two levels the base offense level assigned to

quantities of crack cocaine.”). The district court dismissed the motion for lack of

jurisdiction, finding that Mr. Murphy did not qualify for a reduction in sentence

because his base offense level of 38 remained unchanged. That is, his base

offense level at sentencing was 38, predicated upon the twenty-five to twenty-

seven kilogram quantity of crack cocaine attributable to him, and it remains at 38,

post- Amendment 706, because now a defendant responsible for 4.5 kilograms or

                                         -2-
more of crack cocaine still receives a base offense level of 38. Thus, the

Amendment would not change his Guidelines range. See USSG § 2D1.1(c)(1).

The court subsequently denied a motion filed by an attorney retained by Murphy

to reconsider that dismissal. This appeal followed. We affirm the district court’s

dismissal of Mr. Murphy’s 18 U.S.C. § 3582(c)(2) motion to modify his sentence.



                                 BACKGROUND

      The Federal Bureau of Investigation (“FBI”) began investigating Mr.

Murphy’s drug-related activities in May 1997, after Murphy’s stepson, Adrian

Satchell, informed the FBI that he had been involved with Mr. Murphy in

distributing crack cocaine. Mr. Murphy’s friends and relatives who lived in

Oklahoma City and Clinton, Oklahoma, were also involved. As summarized in

our unpublished opinion affirming Mr. Murphy’s sentence, Murphy’s conduct

included the following:

      The evidence presented and considered by the district court shows
      that Mr. Satchell acted as a drug courier, transporting multi-kilogram
      quantities of cocaine to Mr. Murphy in Oklahoma City from Mr.
      Murphy’s California supplier, Edward McFadden. Testimony from
      the sentencing hearing shows that while Mr. McFadden acted as a
      leader and organizer of the cocaine organization, Mr. Murphy
      managed the Oklahoma City end of the conspiracy involving thirteen
      other members. During this conspiracy, Mr. Murphy (1) instructed
      Mr. Satchell when to go to California and other locations to pick up
      cocaine, (2) provided him the names and telephone numbers of
      persons for Mr. Satchell to contact, (3) directed him when to travel to
      pick up money from cocaine sales, and (4) instructed him when to
      deliver the money to Mr. McFadden. In addition, on several

                                         -3-
      occasions Mr. Murphy made transportation arrangements, such as
      renting vans for Mr. Satchell to use during his trips.

Murphy, 1999 WL 181402, at *2.

      Based upon this activity, the presentence report (“PSR”) prepared by the

United States Probation Office in anticipation of Mr. Murphy’s sentencing

determined that Mr. Murphy should be held accountable for a quantity of drugs

which included, as indicated above, twenty-five to twenty-seven kilograms of

crack cocaine. This drug quantity amount was based largely upon evidence

provided by others involved in the conspiracy. That drug quantity yielded a base

offense level of 38, which, following upward and downward adjustments, along

with a criminal history category of I, resulted in a Guidelines sentencing range of

235 to 293 months. At the sentencing hearing, the district court adopted the PSR

and its recommendations and granted the government’s motion for a sentence

reduction pursuant to USSG. § 5K1.1. It then sentenced Mr. Murphy to 222

months, followed by five years of supervised release.

      Mr. Murphy did not object to the drug quantity attributed to him in the

PSR, nor did he challenge that drug quantity at his sentencing hearing or in his

direct appeal. 1 Instead, he brought this 18 U.S.C. § 3582(c)(2) motion to modify

      1
       In his direct appeal, Murphy challenged the sentencing enhancement he
received for his leadership role in the conspiracy, the district court’s refusal to
apply the “safety valve” provision to his sentence, the district court’s failure to
consider his age and physical infirmities, and the district’s court’s allegedly
improper consideration of the disparity of his sentence, compared with his much
                                                                         (continued...)

                                          -4-
his sentence. His argument is as follows: The one-count information charging

Mr. Murphy with conspiracy to possess cocaine base/crack cocaine with the intent

to distribute did not allege a specific amount. Mr. Murphy pled guilty pursuant to

a plea agreement which stated that the government “believe[d] it [had] evidence

to hold the defendant accountable for a quantity of cocaine base in excess of 1.5

kilograms.” Doc. 25 at 3, R. Vol. 1. Because the twenty-five to twenty-seven

kilogram quantity was “based primarily on estimates of an informant and amounts

provided by his codefendant in debriefing with agents,” he argues that the proper

drug quantity for which he should be held accountable is the “in excess of 1.5

kilograms” to which he pled guilty in the plea agreement. Appellant’s Op. Br. at

7. He further argues that the principles of United States v. Booker, 543 U.S. 220

(2005), mandate that he receive a “proportional sentence based on the Sentencing

Commission’s determination [that] the unwarranted disparity in punishment

between cocaine powder and cocaine base warranted relief.” Appellant’s Op. Br.

at 7.



                                   DISCUSSION

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

reduction in sentence under 18 U.S.C. § 3582(c)(2).” Sharkey, 543 F.3d at 1238.

        1
       (...continued)
younger, female co-defendants, when it calculated the extent of its downward
departure for Murphy’s sentence.

                                          -5-
When a “motion for sentence reduction is not a direct appeal or a collateral attack

under 28 U.S.C. § 2255, the viability of [the] motion depends entirely on 18

U.S.C. § 3582(c).” United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997)

(internal quotation, citation, and alteration omitted).

      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, USSG § 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).” USSG § 1B1.10(a) (2008). Subsection (c) includes

Amendment 706 among the enumerated amendments. 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 been in effect at the

time the defendant was sentenced.” USSG § 1B1.10(b)(1). The policy statement

                                          -6-
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.” USSG

§ 1B1.10(a)(2)(B).

      As a result of Amendment 706, the current highest offense level of 38

would require a quantity of 4.5 kilograms or more of cocaine, rather than the 1.5

kilograms previously required for level 38. See USSG Supp. to App’x C, Amend.

706 (Reason for Amend.). On December 11, 2007, the Sentencing Commission

voted to make Amendment 706 retroactive, through Amendments 712 and 713.

See USSG § 1B1.10(a) and (c); USSG Supp. to App’x C, Amends. 712 and 713.

      Mr. Murphy “acknowledges it appeared he was not eligible for the two

level sentence reduction because he was sentenced for more than 4.5 kilograms of

cocaine base.” Appellant’s Op. Br. at 8. However, he contends that “his plea of

guilty, at most, justifies an offense level of 36 because his admission of guilt

extended only to an amount more than 1.5 kilograms of cocaine base. Mr.

Murphy maintains that any drug quantities exceeding 4.5 kilograms of cocaine

base were only estimates given to agents by coconspirators.” Id. at 8-9. With an

offense level of 36, Mr. Murphy claims his advisory Guidelines range would have

been 188 to 235 months, and that a revised sentence of 177 months would reflect

“a proportional sentence.” Id. at 9.

                                          -7-
      Mr. Murphy’s argument amounts to an attempt to collaterally attack the

drug quantity originally calculated at his sentencing. He may not use

§ 3582(c)(2) to collaterally attack his original sentence. “An argument that a

sentence was incorrectly imposed should be raised on direct appeal or in a motion

to vacate, set aside, or correct [a] sentence pursuant to 28 U.S.C. § 2255.” United

States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003); United States v.

Williams, 290 Fed. Appx. 133, 2008 WL 3861175, **2 (10th Cir. 2008) (“By

challenging the quantity of drugs calculated by the sentencing court, [defendant]

is attempting to use his § 3582(c)(2) motion as a vehicle to challenge the

substance of, or the proceedings that determined, his original sentence.”).

      Finally, Mr. Murphy argues that the remedial opinion in United States v.

Booker, 543 U.S. 220 (2005), as well as the provisions of 18 U.S.C. § 3553(a),

should govern the modification of his sentence and should permit the district

court to “impose a sentence sufficient, but not greater than necessary” to comply

with the purposes of sentencing. 18 U.S.C. § 3553(a). We have, however,

repeatedly rejected the notion that the principles informing Booker have any role

in a sentencing modification proceeding under § 3582(c)(2). See United States v.

Rhodes, 549 F.3d 833, 839 (10th Cir. 2008) (“Booker simply has no bearing on

sentencing modification proceedings conducted under § 3582(c)(2).”), cert.

denied, 129 S. Ct. 2052 (2009); see also United States v. Pedraza, 550 F.3d 1218,

1220 (10th Cir. 2008) (“A resentencing proceeding is an entirely different animal

                                         -8-
that does not implicate the Sixth Amendment concerns that drove the Booker

remedy.”), cert. denied, 129 S. Ct. 2406 (2009). Accordingly, any “argument that

Booker and the Sixth Amendment mandate discretion to impose a below-

guidelines sentence at resentencing has been settled: they do not.” Pedraza, 550

F.3d at 1220.



                                 CONCLUSION

      For the foregoing reasons, the district court’s decision is AFFIRMED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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