                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 8, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-6212
          v.                                           (W.D. Oklahoma)
 VERNON JEFFREY NOLAN,                         (D.C. No. 5:08-CR-00064-HE-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this court 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).

Accordingly, the case is ordered submitted without oral argument.

      Proceeding pro se, Vernon Jeffrey Nolan appeals the district court’s denial

of the Motion for Modification of Sentence he brought pursuant to 18 U.S.C.

§ 3582(c)(2). In 2008, Nolan pleaded guilty to being a felon in possession of a


      *
        This order and judgment is not binding precedent except under the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.
firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Nolan, No. 08-

6246, 2009 WL 2488159 (10th Cir. Aug. 17, 2009). On direct appeal, Nolan

raised five challenges to the fifteen-year mandatory sentence he received pursuant

to 18 U.S.C. § 924(e)(1). Id. at *1. His sentence was affirmed by this court. Id.

at *3.

         Nolan then filed the § 3582(c)(2) motion that is the subject of this appeal.

In his motion, Nolan argued his sentence should be modified based on changes

made to § 4A1.2 of the United States Sentencing Guidelines by Amendment 709.

See United States v. Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003) (“Under

18 U.S.C. § 3582(c)(2), a court may reduce a previously imposed sentence if the

Sentencing Commission has lowered the applicable sentencing range and ‘such a

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.’”). Relying on several bases, the district court ruled it did not have

authority under § 3582(c)(2) to grant Nolan the relief he sought. Because

Amendment 709 became effective before Nolan was sentenced, it did not

subsequently lower his sentencing range. Thus, the district court concluded it had

no power under § 3582(c)(2) to modify Nolan’s sentence. See 18 U.S.C.

§ 3582(c)(2) (permitting a district court to reduce a defendant’s sentence if it is

based on a “sentencing range that has subsequently been lowered”). Further,

because Nolan was sentenced to a minimum mandatory sentence under the Armed

Career Criminal Act, the court determined that Amendment 709 has no relevance

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to his sentence. The district court also rejected Nolan’s Booker claims,

concluding they are not cognizable in a § 3582(c)(2) motion. See United States v.

Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (“Booker does not provide a basis

for a sentence reduction under § 3582(c)(2).” (quotation and alteration omitted)).

      Nolan filed the instant appeal, challenging the district court’s denial of his

§ 3582(c)(2) motion and raising the same arguments he made in the district court.

We have reviewed the record, the appellate briefs, and the applicable law and

conclude the denial of Nolan’s § 3582(c)(2) motion was clearly correct.

Accordingly, the district court’s order denying Nolan motion is affirmed for

substantially the reasons stated in the district court’s order dated September 25,

2009. Nolan’s motion to proceed in forma pauperis on appeal is granted.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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