                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 8, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-5111
 v.                                          (D.Ct. No. 4:99-CR-00033-HDC-3)
                                                        (N.D. Okla.)
 KERMIT OTIS WILLIAMS,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, 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.



      Appellant Kermit Otis Williams, a federal inmate, appeals the district

court’s denial of his request for a variance sought in conjunction with his motion

      *
         This order and judgment is not binding precedent except under the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.
under 18 U.S.C. § 3582(c)(2) to modify his sentence based on 18 U.S.C.

§ 3553(a)(6). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



                              I. Procedural Background

      On April 4, 2000, a jury convicted Mr. Williams of conspiracy to possess

with intent to distribute and to distribute cocaine base (crack) in violation of 21

U.S.C. § 846. After Mr. Williams was convicted, a federal probation officer

prepared a presentence report in conjunction with the 1998 United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) to determine his sentence.

Based on Mr. Williams’s participation in a conspiracy to distribute 715.06 grams

of crack cocaine, his base offense level was assessed at 36. The probation officer

then enhanced his base offense level two levels for his possession of a firearm

during the offense and two levels for his role in the offense, for a total offense

level of 40. Mr. Williams’s total offense level of 40, combined with his criminal

history category of I, resulted in a Guidelines range of 292 to 365 months

imprisonment. However, because the sentence could not be more than the

statutory maximum of twenty years, the probation officer determined the

Guidelines range was 240 months imprisonment.



      Thereafter, the district court sentenced Mr. Williams to 240 months

imprisonment. We affirmed Mr. Williams’s conviction and sentence on direct

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appeal, see United States v. Williams, 44 F.App’x 362 (10 th Cir. Aug. 8, 2002)

(unpublished op.) (per curiam), and the Supreme Court denied his petition for a

writ of certiorari, see Williams v. United States, 537 U.S. 1095 (2002).

Thereafter, Mr. Williams sought a certificate of appealability to appeal the district

court’s denial of his 28 U.S.C. § 2255 habeas petition, and we denied his request

and dismissed his appeal. See United States v. Williams, 117 F.App’x 21 (10 th

Cir. Oct. 20, 2004) (unpublished op.).



      On February 29, 2008, Mr. Williams filed the instant motion to modify his

sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 706 to U.S.S.G.

§ 2D1.1(c) which modified the Drug Quantity Table contained therein downward

two levels for crack cocaine and became effective November 1, 2007, and

retroactive as of March 3, 2008. See U.S.S.G. Supp. to App’x C, Amend. 706

(Reason for Amend.); U.S.S.G. § 1B1.10(a) and (c) (Nov. 1, 2007); Amends. 712

and 713 (Mar. 3, 2008 Supp.). In his motion, Mr. Williams also argued for a

downward variance, based on 18 U.S.C. § 3553(a)(6), for a reduced sentence of

188 months imprisonment in order to avoid what he claimed was an unwarranted

sentencing disparity in comparison with his co-defendant, Lamont Williams, who

received a 188-month sentence.



      After appointing counsel to represent Mr. Williams and receiving briefing

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from the parties, the district court issued an order determining Mr. Williams’s

total offense level should be retroactively reduced from 40 to 38, pursuant to 18

U.S.C. § 3582(c)(2) and Amendment 706, for an amended Guidelines range of

235 to 240 months imprisonment. See U.S.S.G. § 2D1.1(c)(1) (Drug Quantity

Tbl.) (2007 ed.). After noting the motion for such a reduction was unopposed, the

district court granted that portion of Mr. Williams’s § 3582 motion requesting a

reduction in sentence to 235 months imprisonment.



      Next, the district court denied Mr. Williams’s request for a downward

variance. In so doing, it discussed the merits of his argument and explained, in

part, that Mr. Williams did not present any “individualized factors” distinguishing

him “from other similarly situated defendants” but, instead, presented “a broad,

categorical argument” insufficient to support the requested variance. It explained

sentencing decisions must be grounded in case-specific considerations and not on

a general disagreement with broad-based policies pronounced by Congress and

the Sentencing Commission. It also stated it could not “completely ignore the

ratio differences between cocaine powder and crack cocaine because the advisory

guideline range, which remains relevant under § 3553(a) analysis, and the

statutory minimum and mandatory sentences reflect Congress’ preferred ratio.”

R., Vol. 1, 7/14/08 Order at 2.




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                                   II. Discussion

      Mr. Williams now appeals the district court’s dismissal of his motion to

modify his sentence under 18 U.S.C. § 3582(c)(2) for a downward variance under

18 U.S.C. § 3553(a)(6). In support, he argues his sentence is procedurally

unreasonable based on the district court’s failure to recognize the applicable law

established in Kimbrough v. United States, 128 S. Ct. 558, 574-76 (2007). In

Kimbrough, the Supreme Court explained the cocaine guidelines, which provide a

recognized disparity between cocaine base and powder, could not be applied

mandatorily but are advisory and subject to the particular circumstances of each

case. See id.



      We begin by noting that in Kimbrough the issue regarding Guidelines

sentencing disparities between cocaine base (crack) and cocaine powder was

raised and addressed in the original proceeding. See id. at 564-66. In contrast,

Mr. Williams’s argument for a variance relies on § 3582(c)(2) in a modification

proceeding, which is precluded by our prior precedent. In United States v.

Rhodes, we held § 3582(c)(2) does not permit resentencing based on 18 U.S.C.

§ 3553 factors and objectives, but is much more limited, authorizing “a district

court to reduce the term of imprisonment only if such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.” 549

F.3d 833, ___, 2008 WL 5102247, at *5 (10 th Cir. Dec. 5, 2008). Applying

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similar reasoning, in United States v. Sharkey this court rejected the same

argument presented here that § 3582(c)(2) somehow authorizes a sentence

reduction based on the 18 U.S.C. § 3553(a) factors and the Supreme Court’s

decision in Kimbrough. See 543 F.3d 1236, 1238-39 (10 th Cir. 2008). Even

before Rhodes and Sharkey, this court held § 3582(c)(2) motions may not be

employed to present Booker-type claims, as “§ 3582(c)(2) only expressly allows a

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

the [sentencing] range.” United States v. Price, 438 F.3d 1005, 1007 & n.2 (10 th

Cir. 2006). Thus, under § 3582, it is clear the district court could consider only

whether Mr. Williams was entitled to a two-level offense reduction under

Amendment 706, and not the merits of whether any other reduction of his

sentence was warranted under § 3553.



                                  III. Conclusion

      For these reasons, we AFFIRM on other grounds the district court’s order

denying, in part, Mr. Williams’s motion filed pursuant to 18 U.S.C. § 3582(c)(2)

for a downward variance.


                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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