                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 23, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 07-3048
 v.                                            (D.Ct. No. 97-CR-10068-M LB)
                                                          (D . Kan.)
 M AKONNEN M ILES,

          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant M akonnen M iles, a federal inmate appearing pro se, appeals the


      *
         This order and judgment is not binding precedent except under the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.
district court’s denial of his motion, filed pursuant to 18 U.S.C. § 3582(c)(2),

which seeks a reduction of his 240-month sentence. W e exercise jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm the district court’s

order denying a sentence reduction.



      A jury found M r. M iles guilty of two counts of conspiracy to possess with

intent to distribute cocaine base and two counts of possession with intent to

distribute cocaine and cocaine base in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1) and 846. See United States v. M iles, 203 F.3d 836, 2000 W L

121281, at *1 (10th Cir. Feb. 1, 2000) (unpublished op.) (M iles I). On July 16,

1998, the district court sentenced him to 240 months imprisonment. Id. at *1.

This court affirmed M r. M iles’s conviction on direct appeal. See id. at **1-4.

Thereafter, M r. M iles filed a 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence on various grounds. See United States v. M iles, 25 Fed.

Appx. 773, 2001 W L 1580951, at *1 (10th Cir. Dec. 12, 2001) (unpublished op.)

(M iles II). The district court denied the motion, after which this court denied M r.

M iles’s application for a certificate of appealability on his Apprendi claim,

considered his other arguments as a second or successive motion under § 2255,

denied certification of his second or successive motion, and dismissed his appeal.

Id. at **1-2.




                                          -2-
      On September 15, 2003, M r. M iles filed a pro se § 3582(c)(2) motion to

modify his 240-month sentence. He based his motion on Amendment 640 to

United States Sentencing Guidelines (“G uidelines” or “U .S.S.G.”) § 2D1.1(a)(3),

which states: “Amendment: Section 2D1.1(a)(3) is amended by striking

‘below.’ and inserting ‘, except that if the defendant receives an adjustment under

§3B1.2 (M itigating Role), the base offense level under this subsection shall be not

more than level 30.’.” U.S.S.G., App. C, Vol. II at 264-66 (effective Nov. 1,

2002). Because he received a reduction under § 3B1.2 for his mitigating role, M r.

M iles claimed the district court should have reduced his offense level of 34 by

more than two levels under U.S.S.G. § 3B1.2, for a total offense level of 30,

rather than the applied total offense level of 32. In sum, he argued application of

Amendment 640 should reduce the sentencing range applicable to his term of

imprisonment.



      On September 30, 2003, the district court denied M r. M iles’s § 3582(c)(2)

motion on grounds the amendment: 1) was substantive, and not clarifying; 2)

became effective on November 1, 2002, which was after M r. M iles’s July 1998

sentence; and 3) is not retroactive under U .S.S.G. § 1B1.10. See U.S.S.G.

§ 1B1.10(c) and cmt. n.2. 1 M r. M iles did not appeal the order.

      1
        Section 1B1.10(c) lists the amendments w hich may apply retroactively
and does not include Amendment 640. In addition, application note 2 expressly
                                                                   (continued...)

                                         -3-
      On October 26, 2004, M r. M iles filed a subsequent motion to vacate under

28 U.S.C. § 2255, which the district court dismissed as moot. The record does

not disclose the grounds on which M r. M iles filed the successive § 2255 motion.

On January 16, 2007, over three years after M r. M iles filed his initial §

3582(c)(2) motion, he again filed a pro se motion for reduction of sentence under

§ 3582(c)(2) on the same grounds as his initial § 3582(c)(2) motion; i.e.,

regarding the application of Amendment 640. On January 25, 2007, the district

court issued an order denying the motion and explaining M r. M iles’s motion was

substantially identical to his 2003 motion, which it had also denied.



      M r. M iles now appeals the district court’s January 25, 2007 order, insisting

Amendment 640 clarifies § 3B1.2, and therefore his offense level should have

been reduced. W e assume, but do not know whether he brought the instant

motion and appeal on the same grounds as his first § 3582(c)(2) motion in a

concerted attempt to remedy his failure to timely appeal denial of that initial

motion. W hile we construe pro se pleadings liberally, an appellant’s pro se status

does not excuse his obligation to comply with the fundamental requirements of

the Federal Rules of Civil and Appellate Procedure, including filing a timely



      1
        (...continued)
states that in determining the amended Guidelines range, the court should
substitute only the amendments listed in subsection (c) and that “[a]ll other
guideline application decisions remain unaffected.” U.S.S.G. § 1B1.10, cmt. n.2.

                                          -4-
appeal of an order disposing of the issue of contention. See Ogden v. San Juan

County, 32 F.3d 452, 455 (10th Cir. 1994). Nevertheless, we will, in this

instance, consider his appeal for the purpose of resolving the issue raised and

thereby foreclose any future litigation on the subject by him.



      In so doing, “[w ]e review de novo the district court’s interpretation of a

statute or the sentencing guidelines.” United States v. Smartt, 129 F.3d 539, 540

(10th Cir. 1997) (quotation marks and citation omitted). W hen 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).”

Id. at 540 (quotation marks, citation, and alteration omitted). Section 3582(c)

allow s the court to modify a sentence in only three limited circumstances,

including: 1) on motion of the Director of the Bureau of Prisons if special

circumstances exist; 2) if otherwise expressly permitted by statute or Federal Rule

of Criminal Procedure 35; or 3) if the sentencing range is subsequently lowered

by the Sentencing Commission. Id. at 540-41. M r. M iles’s motion is premised on

the last circumstance – a reduction of the sentencing range applicable to him.



      Having reviewed the record and briefs on appeal, we conclude the district

court did not err in denying M r. M iles’s motion to modify his sentence under

§ 3582(c)(2). As the district court aptly explained in its initial order on the

                                          -5-
matter, Amendment 640 is not listed in § 1B1.10(c), and therefore a reduction of

his sentence under § 3582(c)(2) is not authorized and he is not entitled to relief

under that provision. See United States v. Torres-Aquino, 334 F.3d 939, 941

(10th Cir. 2003). See also United States v. Cabrera-Polo, 376 F.3d 29, 32-33 (1st

Cir. 2004) (pointing out that because A mendment 640 is not listed in § 1B1.10(c),

the Sentencing Commission did not anticipate its retroactive application).



      W e also reject M r. M iles’s suggestion Amendment 640 should be given

retroactive application because it is a “clarifying” amendment rather than a

“substantive” amendment.

      The question whether an amendment to the guidelines is clarifying or
      substantive goes to whether a defendant was correctly sentenced
      under the guidelines in the first place, not to whether a correct
      sentence has subsequently been reduced by an amendment to the
      guidelines and can be modified in a proceeding under § 3582(c)(2).

Torres-Aquino, 334 F.3d at 941. “A n argument that a sentence was incorrectly

imposed should be raised on direct appeal or in a motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255.” 2 Id. As a result, the clarifying

      2
         As stated by this court in M r. M iles’s previous § 2255 appeal, “a second
or successive petition for habeas relief ... may only be filed on authorization from
this court,” and:

      [w]e may certify such claims if the motion contains either newly
      discovered evidence that would be sufficient to establish by clear and
      convincing evidence that no reasonable fact finder would have found
      the movant guilty, or a new rule of constitutional law made
                                                                     (continued...)

                                         -6-
question raised by M r. M iles may not be reached in addressing his § 3582 motion,

making the question of whether the district court applied the correct version of

§ 2D1.1(a)(3) or § 3B1.2 immaterial to our decision. Similarly, the fact the

district court reached a decision on the substantive nature of the amendment in

denying the motion does not change the result. Id. Thus, while we need not

consider w hether Amendment 640 is substantive for the purpose of this appeal,

we do note it has previously been deemed “substantive,” and “therefore, not

retroactive under the ‘clarification’ doctrine.” Cabrera-Polo, 376 F.3d at 32.



      Accordingly, for the reasons stated herein, we AFFIRM the district court’s

order denying a sentence reduction under 18 U.S.C. § 3582(c)(2). W e further

G R A N T Appellant’s application to proceed w ithout prepayment of fees.



      However, we admonish M r. M iles for filing duplicate § 3582(c)(2) motions

on the same A mendment 640 issue. The district court has considered and rejected

the issue twice – the latter of which we affirmed on appeal and has now been

fully adjudicated. W e caution M r. M iles further filings on this issue or any other

fully adjudicated matters may result in an order asking him to show cause why

      2
       (...continued)
      retroactive to cases on collateral review by the Supreme Court.

M iles II at *1 (relying on Coleman v. United States, 106 F.3d 339, 340-41 (10th
Cir. 1997) (per curiam)).

                                         -7-
this court should not limit his future filings and provide for sanctions. See

Andrews v. Heaton, 483 F.3d 1070, 1077-78 (10th Cir. 2007). W e further caution

M r. M iles that the fact he is a pro se litigant does not prohibit the court from

imposing such sanctions on him. See Haworth v. Royal, 347 F.3d 1189, 1192

(10th Cir. 2003).



                                         Entered by the C ourt:

                                         W ADE BRO RBY
                                         United States Circuit Judge




                                           -8-
