                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES COURT OF APPEALS January 27, 2010
                                                                  Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                    Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                     No. 09-5092
                                                (D.C. No. 4:93-CR-00185-GKF-2)
    WILLIAM LAWRENCE, JR.,                                 (N.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and BALDOCK, Circuit Judges.



         William Lawrence, Jr., appeals the district court’s denial of his pro se

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Exercising our

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s denial of the

motion for lack of jurisdiction.




*
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Mr. Lawrence was convicted in 1994 of conspiracy charges related to

possession and distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

846. The district court sentenced him to 262 months’ imprisonment, based on

sentencing guidelines applicable to cocaine offenses. He was not convicted of

any offense involving cocaine base, otherwise known as crack cocaine. This

court affirmed his convictions and sentence, rejecting his claim that the district

court erroneously calculated the quantity of cocaine used to determine his base

offense level. See United States v. Edwards, 69 F.3d 419, 438-39 (10th Cir.

1995). In 2009, Mr. Lawrence filed a motion seeking a sentence reduction under

§ 3582(c)(2). The district court denied his motion for lack of jurisdiction,

holding that he was not eligible for a sentence modification under this section.

Mr. Lawrence filed a timely appeal.

      “A district court is authorized to modify a Defendant’s sentence only in

specified instances where Congress has expressly granted the court jurisdiction to

do so . . . .” United States v. Green, 405 F.3d 1180, 1184 (10th Cir. 2005)

(quotation omitted). Mr. Lawrence invoked § 3582(c)(2) as the basis for the

district court’s authority to reduce his sentence. “Unless the basis for

resentencing falls within one of the specific categories authorized by section

3582(c), the district court lacked jurisdiction to consider [defendant’s] request.”

United States v. Smartt, 129 F.3d 539, 541 (10th Cir. 1997). “The scope of a

district court’s authority in a resentencing proceeding under § 3582(c)(2) is a

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question of law that we review de novo.” United States v. Rhodes, 549 F.3d 833,

837 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).

      Section 3582(c)(2) provides:

      (c) Modification of an imposed term of imprisonment.--The court
      may not modify a term of imprisonment once it has been imposed
      except that--
            ....

            (2) 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 pursuant to 28 U.S.C. 994(o), upon motion
            of the defendant . . . 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.

Mr. Lawrence contends he is eligible for a sentence reduction because

Amendments 706 and 715 of the United States Sentencing Guidelines (USSG)

subsequently lowered his sentencing range. Amendment 706 “generally adjust[s]

downward by two levels the base offense level assigned to quantities of crack

cocaine.” United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008).

Amendment 715 effectuates the two-level reduction intended by Amendment 706

for offenses involving both crack cocaine and another controlled substance.

See USSG App’x C Supp., Amend. 715 (May 1, 2008). 1



1
      Both of these Amendments were made retroactive. See USSG App’x C
Supp., Amends. 713 and 716.

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      A district court has no authority to modify a sentence under § 3582(c)(2) if

the defendant’s sentence was not “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” United States v.

Trujeque, 100 F.3d 869, 871 (10th Cir. 1996) (quotation omitted). Here the

district court correctly concluded it lacked jurisdiction to lower Mr. Lawrence’s

sentence as a result of Amendments 706 and 715. He was not convicted of any

crack-cocaine offense; therefore, his sentence was not “based on” a sentencing

range that was lowered by these Amendments. See United States v. Fontenot,

583 F.3d 743, 744 (10th Cir. 2009) (Amendment 706 had no bearing on sentence

based on revocation of supervised release); Sharkey, 543 F.3d at 1239

(Amendment 706 had no effect on sentence based on career-offender guidelines).

      Mr. Lawrence also argues that the sentencing court erred in imposing his

sentence, particularly with respect to its finding regarding the quantity of drugs

attributable to him. The district court construed his contentions as raising

constitutional claims of error under Blakely v. Washington, 542 U.S. 296 (2004),

Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker,

543 U.S. 220 (2005). Such claims are not cognizable under the limited

jurisdiction granted in § 3582(c)(2). See United States v. Price, 438 F.3d 1005,

1007 (10th Cir. 2006) (holding “§ 3582(c)(2) only expressly allows a reduction

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

[sentencing] range”); see also United States v. Torres-Aquino, 334 F.3d 939, 941

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(10th Cir. 2003) (district court had no jurisdiction under § 3582(c)(2) to reach

question whether sentence was incorrectly imposed); Smartt, 129 F.3d at 543

(legal challenges related to original sentencing must be raised under 28 U.S.C.

§ 2255, rather than § 3582(c)). Therefore, the district court again correctly

concluded it lacked jurisdiction to consider Mr. Lawrence’s claims regarding the

validity of his sentence.

      The district court’s order denying Mr. Lawrence’s motion for lack of

jurisdiction is AFFIRMED. His application to proceed in forma pauperis on

appeal is DENIED.


                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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