                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                         UNITED STATES COURT OF APPEALS                       June 5, 2013

                                                                         Elisabeth A. Shumaker
                                    TENTH CIRCUIT                            Clerk of Court




 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,                              No. 12-6308
                                                    (D.C. No. 5:10-CR-00272-R-1)
 v.                                                         (W.D. Okla.)

 RUFUS TAIWAN SHINES,

           Defendant–Appellant.


                                 ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Rufus Shines, a federal prisoner proceeding pro se, appeals from the district

court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



       *
         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) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
                                             I

       On October 26, 2010, a jury convicted Shines of possession of 24.3 grams of a

mixture containing cocaine base (crack cocaine), in violation of 21 U.S.C. § 844, and of

being a felon in possession of a firearm, in violation of 18 U.S.C § 922(g)(1). Pursuant to

U.S.S.G. § 3D1.2(c), Shines’ Pre-Sentence Investigation Report (“PSR”) grouped both

counts of conviction together because drug possession is a specific offense characteristic

that modifies the firearms offense level. The PSR calculated a base offense level of

fourteen for the firearms charge, see § 2K2.1(a)(6)(A), and added four levels because the

firearm was possessed in connection with the drug offense, see § 2K2.1(b)(6). Shines’

advisory Guidelines range was thirty to thirty-seven months, but the PSR noted that

Shines’ mandatory minimum for his drug offense was sixty months’ imprisonment based

on a prior version of 21 U.S.C. § 844.

       On April 22, 2011, Shines was sentenced to sixty months’ imprisonment on each

count to run concurrently. Following direct appeal and an unsuccessful habeas petition,

Shines petitioned this court for leave to file a second or successive habeas petition. He

argued that under Dorsey v. United States, 132 S. Ct. 2312 (2012), the lower mandatory

minimum established by the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220,

124 Stat. 2372, should apply in his case. See In re Shines, 696 F.3d 1330, 1331 (10th

Cir. 2012). We concluded that Dorsey did not announce a new rule of constitutional law



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as required by 28 U.S.C. § 2255(h) and denied his petition. In re Shines, 696 F.3d at

1332.

        Shines then filed a motion under 18 U.S.C. § 3582(c)(2), seeking to reduce his

sentence based on Amendment 750 to the Guidelines. The district court denied the

motion. Shines timely appealed.

                                              II

        Shines contends that the district court erred in concluding that it lacked the

authority to reduce his sentence under § 3582(c)(2). “The 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).

        In general, a “court may not modify a term of imprisonment once it has been

imposed.” § 3582(c). However, under § 3582(c)(2), a district court may modify a

sentence that is “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission . . . if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” The Sentencing Commission has

issued a policy statement explaining that a sentence reduction is inappropriate under

§ 3582(c)(2) if “ [a]n amendment . . . does not have the effect of lowering the defendant’s

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

        We conclude that Amendment 750 does not have the effect of lowering Shines’



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Guidelines range and therefore the district court correctly denied his § 3582(c)(2) motion.

Amendment 750 altered the Guidelines drug-quantity tables for crack cocaine such that a

larger quantity is required for each base offense level, and a subsequent amendment

applied these changes retroactively. See United States v. Osborn, 679 F.3d 1193, 1194

(10th Cir. 2012). However, Shines’ Guidelines range was based on § 2K2.1, the

Guideline for firearms offenses, not the drug quantity tables. Therefore, even if Shines

were resentenced under today’s Guidelines, his applicable Guidelines range would be

precisely the same. Cf. United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008)

(sentence reduction unavailable in crack cocaine case because amendment had no effect

on career offender Guidelines in § 4B1.1, which the court used in sentencing).

       We also note that Shines’ sentence was based on a statutory minimum. And

because Amendment 750 does not lower this mandatory minimum, a reduction in his

term of imprisonment is not authorized by § 3582(c)(2). See U.S.S.G. § 1B1.10, cmt. n.1

(sentence reduction not available if an “amendment does not have the effect of lowering

the defendant’s applicable guideline range because of the operation of another . . .

statutory provision”); see also Osborn, 679 F.3d at 1194 n.1 (noting that even after the

FSA “in many cases, the operation of the statutory minimum sentence will preclude a

sentence reduction under 18 U.S.C. § 3582(c)(2)”). To the extent that Shines also argues

that he was never properly subject to the pre-FSA mandatory minimum or that the FSA’s



                                            -4-
mandatory minimums should apply retroactively to his sentence under Dorsey, we are

bound by this court’s previous decision in In re Shines, 696 F.3d at 1331, and must reject

these arguments.

                                           III

      For the foregoing reasons, the decision of the district court is AFFIRMED.

                                         Entered for the Court



                                         Carlos F. Lucero
                                         Circuit Judge




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