                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    October 21, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-5088
                                              (D.C. No. 4:89-CR-00091-HDC-5)
    REGGIE LEROY,                                        (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.



         Appellant Reggie Leroy, a federal prisoner proceeding pro se, appeals the

district court’s denial of his motion filed pursuant to 18 U.S.C. § 3582(c)(2) to

modify his sentence based on Amendment 706 to the United States Sentencing

Guidelines (“Guidelines” or “U.S.S.G.”). We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                    Background

      A jury convicted Mr. Leroy and several codefendants of conspiring to

knowingly and intentionally distribute cocaine base (crack cocaine). He was

sentenced to 320 months’ imprisonment. On appeal, his conviction was affirmed

and his sentence was remanded for the district court to make the necessary

findings on the record. United States v. Leroy, 944 F.2d 787 (10th Cir. 1991).

On remand, the district court again sentenced Mr. Leroy to 320 months, which

was affirmed on appeal. United States v. Leroy, 984 F.2d 1095 (10th Cir. 1993).

      Mr. Leroy’s sentence was based on a drug quantity of four kilograms of

cocaine base. His Guidelines sentence was calculated using the 1988 version of

the Guidelines. 1 Under that version, his base offense level was 36. See U.S.S.G.

§ 2D1.1(a)(3) (1988). With an increase of two levels for possession of a firearm

and other dangerous weapons, and two additional levels for managing the

conspiracy, the total offense level was 40, with a sentencing range of 292 to 365

months. Mr. Leroy’s 320-month sentence was within that range.

      Mr. Leroy filed his motion for sentence reduction under § 3582(c)(2) based

on Amendment 706 of the Guidelines. “The Guidelines, through Amendment

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


1
       The district court’s order indicates that the 1989 version was applied, but it
is the 1988 version that states the base offense level as 36 for Mr. Leroy’s drug
quantity. See R. Vol. III at 6 (presentence report showing base offense level
of 36).

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quantities of crack cocaine. Amendment 706 took effect November 1, 2007 and

was made retroactive as of March 3, 2008.” United States v. Sharkey,

No. 08-3115, ___ F.3d ___, 2008 WL 4482893, at *1 (10th Cir. Oct. 7, 2008).

But the base offense level for four kilograms of cocaine base was increased after

Mr. Leroy was sentenced. For example, the 1989 Guidelines directed a base

offense level of 38 for four kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(3)

(1989).

      It is undisputed that under the 1988 Guidelines, Mr. Leroy’s base offense

level was 36. It is further undisputed that under Amendment 706, his base

offense level is also 36. Adding the enhancements, both adjusted Guideline levels

are 40. Because application of Amendment 706 results in no change to

Mr. Leroy’s Guidelines level, the district court denied his motion to reduce his

sentence.

      Mr. Leroy appeals. He maintains that despite the fact that Amendment 706

did not lower his base offense level, the district court abused its discretion in

refusing to reduce his sentence. He also contends that the district court abused its

discretion in failing to consider his postconviction conduct. In addition, he

maintains that the district court’s refusal to reconsider his sentence ran afoul of

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

128 S. Ct. 558 (2007), because the district court merely re-imposed the original

sentence without recognizing that the Guidelines are advisory, not mandatory.

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                           Legal Standards and Analysis

      “We 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 omitted). “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, 2008 WL 4482893, at *2. We construe liberally pleadings filed by

pro se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

      Amendment 706 lowered the base offense level for drug offenses involving

crack cocaine. See U.S.S.G. § 2D1.1 (2007); U.S.S.G. Supp. to App. C, Amend.

706 (Nov. 1, 2007). When, as here, 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).” Smartt, 129 F.3d at 540

(quotation and brackets omitted). As applicable to Mr. Leroy’s situation,

§ 3582(c) allows the court to modify a sentence only if the sentencing range is

subsequently lowered by the Sentencing Commission.

      A reduction of a defendant’s sentence “is not consistent with [the

Sentencing Commission’s] policy statement and therefore is not authorized under

18 U.S.C. § 3582(c)(2)” if the amended drug-quantity table “does not have the

effect of lowering the defendant’s applicable guideline range.” U.S.S.G.

§ 1B1.10(a)(2)(B) (Supp. 2008). Amendment 706 has no effect on the Guideline

Mr. Leroy was sentenced under; accordingly, his motion for relief pursuant to

                                          -4-
§ 3582(c)(2) was properly denied. Cf. Sharkey, 2008 WL 4482893, at *2 (holding

a reduction in defendant’s sentence as a career offender was not authorized under

§ 3582(c)(2) because Amendment 706 did not lower his applicable Guideline

range under the career-offender Guidelines).

      Turning to Mr. Leroy’s claim that the district court erred by not considering

his exemplary postconviction conduct, we first note that he did not raise this

claim in the district court. Consequently, we do not consider it. See United

States v. Green, 175 F.3d 822, 837 (10th Cir. 1999) (holding defendant waived

alleged factual inaccuracies in presentence report by failing to raise them in

district court). Moreover, because the district court did not resentence Mr. Leroy,

it had no occasion to consider his rehabilitation. Finally, although this claim

arguably may fall within § 3582(c)(1)(A), such a claim must be brought by the

Director of the Bureau of Prisons, a requirement not met here. Smartt, 129 F.3d

at 541.

      Mr. Leroy also asserts that the district court failed to recognize that the

Guidelines are not mandatory, in violation of the Booker line of cases, and

therefore the court abused its discretion by imposing the same Guidelines

sentence. This court has held that § 3582(c)(2) motions may not be used to

present Booker claims seeking resentencing simply because Booker rendered the

Guidelines advisory. See United States v. Price, 438 F.3d 1005, 1007 & n.2

(10th Cir. 2006). In addition, the policy statement in U.S.S.G. § 1B1.10 provides:

                                         -5-
      In determining whether, and to what extent, a reduction in the
      defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and
      this policy statement is warranted, the court . . . shall substitute only
      the amendments listed in subsection (c) for the corresponding
      guideline provisions that were applied when the defendant was
      sentenced and shall leave all other guideline application decisions
      unaffected.

U.S.S.G. § 1B1.10(b) (Supp. 2008) (emphasis added). Thus, § 3582(c)(2) permits

the court to consider only whether Mr. Leroy is entitled to a two-level offense

reduction under Amendment 706, not to reevaluate his sentence under the

Guidelines.

      The district court’s order denying Mr. Leroy’s § 3582(c)(2) motion is

AFFIRMED.

                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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