                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                         December 10, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                         No. 13-6045
                                                    (D.C. No. 5:93-CR-00175-R-1)
 SAMUEL EARL NORWOOD,                                       (W.D. Okla.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before LUCERO, MURPHY, and MATHESON, Circuit Judges.



       Defendant-Appellant Samuel Earl Norwood was convicted in 1994 for his role as

a leader in a cocaine base (crack cocaine) drug distribution conspiracy. The district court

sentenced Mr. Norwood to life in prison—his sentencing range under the United States

Sentencing Guidelines (the “Guidelines”). In 2008 and 2012, Mr. Norwood moved

pro se for a reduction under 18 U.S.C. § 3582(c)(2) in light of amendments to the


        * After examining Appellant=s brief and the 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Guidelines that reduced the sentencing disparity between powder and crack cocaine. In

2013, Mr. Norwood’s counsel filed a supplemental motion on his behalf. The district

court denied these motions because the amendments did not lower his Guidelines range.

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm.

                                  I. BACKGROUND

                                A. Conviction and Sentencing

       Mr. Norwood was the leader of a drug conspiracy to supply multi-kilogram

quantities of crack cocaine in the Oklahoma City area. On January 27, 1994, a jury

convicted him on 17 counts of drug-related offenses, including conspiracy to possess

with intent to distribute cocaine powder and crack cocaine, in violation of 21 U.S.C.

§ 846, and distributing crack cocaine to a person under the age of 21, in violation of 21

U.S.C. § 859.

       In preparation for Mr. Norwood’s sentencing, the Probation Office prepared a

presentence report (“PSR”) using the 1993 edition of the Guidelines. The PSR grouped

15 of Mr. Norwood’s drug related offenses under U.S.S.G. § 2D1.1(a)(3) (1993), which

established a base offense level of 42 for distributing 15 kilograms or more of cocaine

base. See id. § 2D1.1(c)(1). The PSR added four levels for Mr. Norwood’s role as a

leader/organizer and two levels for obstruction of justice. This yielded a total offense

level of 48 for these counts.

       The PSR grouped Mr. Norwood’s remaining two counts—for distributing crack

cocaine to a minor in violation of 21 U.S.C. § 859—under U.S.S.G. § 2D1.2. This
                                            -2-
guideline called for a base offense level of 43: one plus the offense level from § 2D1.1

applicable to the total controlled substances involved in the offense (which, as noted

above, was 42). See U.S.S.G. § 2D1.2(a)(2) (1993). The PSR again added four levels for

Mr. Norwood’s role as a leader/organizer and two levels for obstruction of justice. This

established a total offense level of 49.

       The PSR attributed nine criminal history points to Mr. Norwood because of three

previous convictions and because he participated in the drug conspiracy while on

probation. This established a criminal history category of IV, which combined with his

highest total offense level of 49, placed Mr. Norwood’s Guidelines range at life in prison.

See U.S.S.G. Ch. 5, Part A (1993) (Sentencing Table). Mr. Norwood objected to the

PSR’s calculation of the offense levels for his convictions, but he did not object to the

calculation of his criminal history category.

       At sentencing, the district court sustained Mr. Norwood’s objection to the

obstruction-of-justice enhancement. The court overruled all other objections, including

Mr. Norwood’s objection to the enhancement for his role as a leader/organizer. The court

also determined that Mr. Norwood was accountable for the distribution of “at least 20

kilograms of crack cocaine.” Suppl. ROA, Vol. I at 72; see also United States v. Ivy, 83

F.3d 1266, 1288 (10th Cir. 1996) (quoting district court in opinion denying appeal of

multiple defendants, including Mr. Norwood, on sufficiency of evidence grounds). After

striking the obstruction-of-justice enhancements, Mr. Norwood’s total offense level was

46 (for the 15 counts grouped under § 2D1.1) and 47 (for the two counts grouped under
                                                -3-
§ 2D1.2) for his convictions, and his criminal history category remained at IV, resulting

in a Guidelines range of life in prison. See U.S.S.G. Ch. 5, Part A (1993) (Sentencing

Table). The district court sentenced Mr. Norwood to life in prison on six counts, 240

months in prison on two counts, 960 months in prison on two counts, 480 months in

prison on five counts, and 60 months in prison on two counts, all to run concurrently.

       Mr. Norwood appealed both his conviction and sentence, and we affirmed. Ivy, 83

F.3d at 1298.1

                              B. Amendments to the Guidelines

       Since Mr. Norwood’s initial sentencing in 1994, the Sentencing Commission has

adopted three amendments to the Guidelines that are relevant to this appeal. In 1995, the

Commission made retroactive Amendment 505, which reduced the highest base offense

level available for all drug tables in the Guidelines from 42 to 38. See U.S.S.G. App. C,

Vol. I, amend. 536 (Nov. 1, 1995); see also id. App. C, Vol. I, amend. 505 (Nov. 1,

1994); United States v. Pedraza, 550 F.3d 1218, 1219 (10th Cir. 2008).

       In 2007, the Commission promulgated Amendment 706, which “generally

       1
          In 1999, the district court resentenced Mr. Norwood, pursuant to the
Government’s Fed. R. Crim. P. 35(b) motion, to 360 months in prison on thirteen counts,
240 months in prison on two counts, and 60 months in prison on two counts. As the
Government observes, “[t]his resentencing has no relevancy to [Mr. Norwood’s]
eligibility for a sentence reduction,” Aplee. Br. at 4 n.2, because the “applicable guideline
range” for this inquiry is “determined before considering any departure provision in the
Guidelines Manual or any variance,” U.S.S.G. § 1B1.10 cmt. 1(A) (parentheses omitted).
See also United States v. Roa-Medina, 607 F.3d 255, 260 (holding that sentences reduced
under Rule 35(b) “remain ‘based on’ the restricted guidelines range that applied at the
initial sentencing”).

                                             -4-
adjusted 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); see also

U.S.S.G. App. C, Vol. III, amend. 706 (Nov. 1, 2007). This amendment became

retroactive on March 3, 2008. See U.S.S.G. App. C, Vol. III, amend. 713 (Mar. 3, 2008).

It left base offense levels unchanged for offenses involving 4.5 kilograms of crack

cocaine or greater. See id. App. C, Vol. III, amend. 706.

       In November 2011, the Sentencing Commission made retroactive Amendment

750, which permanently reduced the offense levels for the crack cocaine guidelines to

reflect the new 18:1 ratio between crack and powder cocaine established in the Fair

Sentencing Act (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372. See U.S.S.G. App. C,

Vol. III, amend. 750 (Nov. 1, 2011); id. App. C., Vol. III, amend. 759 (Nov. 1, 2011)

(giving Amendment 750 retroactive effect). “The amendment altered the drug-quantity

tables in the Guidelines, ‘increasing the required quantity to be subject to each base

offense level in a manner proportionate to the statutory change to the mandatory

minimums effectuated by the FSA.’” United States v. Osborn, 679 F.3d 1193, 1194

(10th Cir. 2012) (quoting United States v. Curet, 670 F.3d 296, 309 (1st Cir. 2012)).

Although Amendment 750 increased the amount of crack cocaine required to establish

the highest base offense level from 4.5 to 8.4 kilograms, it did not lower base offense

levels for distribution convictions associated with 8.4 kilograms of crack cocaine or

greater. See U.S.S.G. App. C, Vol. III, amend. 750.


                                            -5-
                             C. Section 3582(c)(2) Proceedings

       In 2008, Mr. Norwood filed a pro se § 3582(c)(2) motion seeking a reduction in

his sentence based on Amendment 706. He was appointed counsel, but no action was

taken on the motion at that time.

       On August 6, 2012, after the Sentencing Commission made Amendment 750

retroactive, Mr. Norwood filed a second pro se § 3582(c)(2) motion seeking a sentence

reduction based on that amendment as well. On January 10, 2013, his counsel filed a

supplemental motion in support of a sentence reduction based on the same amendment.

In the Government’s response, it argued that Mr. Norwood was not eligible for a sentence

reduction because he was held accountable for a drug quantity in excess of 8.4 kilograms

and thus, neither Amendment 706 nor Amendment 750 could lower his base offense

level. The district court agreed and denied Mr. Norwood’s motions for a sentence

reduction because his “guideline range remain[ed] unchanged.” ROA, Vol. I at 148; see

also 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B). Mr. Norwood now appeals.

                                    II. DISCUSSION

                        A. Standard of Review and Applicable Law

       We review a “district court’s decision to deny a sentence reduction pursuant to 18

U.S.C. § 3582(c)(2) for abuse of discretion.” United States v. Hodge, 721 F.3d 1279,

1280 (10th Cir. 2013). However, “[t]he scope of a district court’s authority in a

resentencing proceeding under § 3582(c)(2) is a question of law that we review de novo.”

United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008).
                                            -6-
       “A judgment of conviction that includes a sentence of imprisonment constitutes a

final judgment and may not be modified by a district court except in limited

circumstances.” Dillon v. United States, 130 S. Ct. 2683, 2690 (2010) (quotations

omitted). “[I]n 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,” however, a court may reduce a previously imposed sentence

“if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also United States v. Battle, 706

F.3d 1313, 1317 (10th Cir. 2013).

       Section 3582(c)(2) “establishes a two-step inquiry” for evaluating a motion for

sentence modification. Dillon, 130 S. Ct. at 2691; see also United States v. McGee, 615

F.3d 1287, 1292 (10th Cir. 2010). Courts must first “follow the Commission’s

instructions in [U.S.S.G.] § 1B1.10 to determine the prisoner’s eligibility for a sentence

modification and the extent of the reduction authorized.” McGee, 615 F.3d at 1292

(quoting Dillon, 130 S. Ct. at 2691). Section 1B1.10 explicitly forbids a sentencing

reduction based on an amendment that “does not have the effect of lowering the

defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

       “Only if a district court ‘determine[s] that a reduction is consistent with § 1B1.10’

may it proceed to step two of the inquiry.” McGee, 615 F.3d at 1292 (quoting Dillon,

130 S. Ct. at 2691). At step two, a court must “consider any applicable § 3553(a) factors

and determine whether, in its discretion, the reduction authorized by reference to the
                                            -7-
policies relevant at step one is warranted in whole or in part under the particular

circumstances of the case.” Id. (quoting Dillon, 130 S. Ct. at 2692).

                                        B. Application

       Mr. Norwood argues that Amendments 706 and 750 make him eligible for a

sentence modification because the amendments lowered his base offense level, and thus

his Guidelines range. See Aplt. Br. at 15. He further argues that a proportional sentence

reduction is appropriate because of “[p]ublic policy considerations of safety,

rehabilitation, and reintegration in society.” Id. at 18-19. We disagree.

       Mr. Norwood is not eligible for a sentencing reduction because the amendments

did not lower his Guidelines range. First, Mr. Norwood’s motions for a sentence

reduction identify the wrong amendments. Amendment 505, not Amendments 706 and

750, actually lowered his base offense level for distribution of crack cocaine.

Amendments 706 and 750, by their express terms, do not lower the base offense level for

distribution offenses involving greater than 8.4 kilograms of crack cocaine. See U.S.S.G.

App. C, Vol. III, amends. 706 (4.5 kg), 750 (8.4 kg); see also id. § 2D1.1(c)(1) (8.4 kg).

In this case, the district court found that Mr. Norwood had trafficked in “at least 20

kilograms of crack cocaine.” Suppl. ROA, Vol. I at 72. We affirmed this finding in Mr.

Norwood’s first appeal. See Ivy, 83 F.3d at 1291 (20-kilogram estimate was “by no

means clear error”). The district court was therefore correct to conclude that

Amendments 706 and 750 did not lower Mr. Norwood’s base offense level.

       Second, although Amendment 505 reduced the base offense level for Mr.
                                             -8-
Norwood’s crimes, this amendment did not reduce Mr. Norwood’s Guidelines range,

which is a prerequisite for a sentence modification under 18 U.S.C. § 3582(c)(2) and

U.S.S.G. § 1B1.10(a)(2)(B). Under U.S.S.G. § 2D1.1(c), the base offense level for Mr.

Norwood’s drug amount—“at least 20 kilograms of crack cocaine,” Suppl. ROA, Vol. I

at 72—is 38, down from 42 in 1994 at his initial sentencing. This base level is increased

to 39 for Mr. Norwood’s counts involving distribution to a minor. See U.S.S.G.

§ 2D1.2(a)(2) (providing for a base offense level of “[one] plus the offense level from

§ 2D1.1 applicable to the total quantity of controlled substances involved in the offense”

for drug offenses involving minors).

       Adding Mr. Norwood’s four-level enhancement for his role as a leader/organizer

results in a total offense level of 43, down from 47. See U.S.S.G. § 1B1.10(b)(1) (“In

[determining eligibility], 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.” (emphasis added)); see also U.S.S.G. § 3D1.3(b) (“When the counts involve

offenses of the same general type to which different guidelines apply, apply the offense

guideline that produces the highest offense level.”). When paired with Mr. Norwood’s

criminal history category of IV, this new total offense level of 43 still produces an

amended Guidelines range of life in prison. See U.S.S.G. Ch. 5, Pt. A (Sentencing

Table).

       Accordingly, because none of the amendments actually lowered Mr. Norwood’s
                                             -9-
Guidelines range, he is not eligible for a sentencing modification under 18 U.S.C.

§ 3582(c).2

                                    III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Mr. Norwood’s

motions for a sentence reduction.

                                         ENTERED FOR THE COURT



                                         Scott M. Matheson, Jr.
                                         Circuit Judge




      2
          Because Mr. Norwood is not eligible for a sentencing modification, we do not
address his arguments that he should receive a sentence reduction below the amended
Guidelines range, see Aplt. Br. at 15-19. See McGee, 615 F.3d at 1292 (“Only if a
district court determines that a reduction is consistent with § 1B1.10 may it proceed to
step two of the inquiry.” (quotations omitted)); see also Sharkey, 543 F.3d at 1239
(declining to consider similar arguments where defendant was not eligible for sentencing
reduction).

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