                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 25, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 12-6003
          v.                                           (W.D. of Okla.)
 LEBRON EARL SAMUELS,                           (D.C. No. 5:10-CR-00144-F-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Labron Earl Samuels, 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 750 to the United States Sentencing

Guidelines (USSG). We have jurisdiction under 28 U.S.C. § 1291, and we




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
construe Samuels’s filings liberally because he is proceeding pro se. See Hall v.

Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

      We find the district court did not abuse its discretion in denying the

§ 3582(c)(2) motion. The district court’s order denying Samuels’s § 3582(c)(2)

motion is AFFIRMED. We DENY the motion for leave to proceed in forma

pauperis.

                                I. Background

      Samuels was convicted of use of a communication facility to facilitate the

acquisition of cocaine base in violation of 21 U.S.C. § 843(b). Under the

advisory sentencing guidelines, Samuels was determined to have a total offense

level of 29 and a criminal history category of VI, resulting in a guideline

incarceration range of 151 to 188 months.

      After Samuels pleaded guilty but before he was sentenced, Congress passed

the Fair Sentencing Act of 2010, 2010, Pub. L. No. 11-120, 124 Stat. 2372

(2010), which reduced the disparity between crack and powder cocaine sentences.

The district court took notice of this change in the law and entered an order

abating Samuels’s sentencing until new Sentencing Guidelines were adopted

pursuant to this legislation. After the new Guidelines were adopted, the court

ordered the preparation of a revised presentence report (PSR), which found that

Samuels’s guideline range was still 151 to 188 months. The PSR also found that

Samuels’s offense was subject to a statutory maximum of 48 months under

                                         -2-
21 U.S.C. § 843(d)(1). The court then sentenced Samuels to a term of 48 months

of incarceration based on the statutory maximum penalty.

      Samuels then filed a motion in district court pursuant to 18 U.S.C.

§ 3582(c)(2) for a reduction of his sentence. The district court denied his motion

for sentence reduction on the grounds that adoption of the amended Sentencing

Guidelines did not reduce Samuels’s guideline range, and accordingly concluded

that 18 U.S.C. § 3582(c)(2) did not authorize reduction of the 48-month

incarceration term already imposed.

                                  II. 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).”

United States v. Sharkey, 543 F.3d 1236, 1238–39 (10th Cir. 2008).

      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 Samuels’s situation, § 3582(c) allows the court to

modify a sentence only if the sentencing range is subsequently lowered by the

Sentencing Commission. Contrary to his argument that Amendment 750 entitles

him to a reduction of his statutory-maximum sentence of 48 months, Samuels

                                        -3-
does not fall within the situation covered by USSG § 1B1.10(b)(2)(B).

Amendment 750 does not address a statutory maximum sentence. Rather,

“[p]ursuant to U.S.S.G. § 5G1.1(a), if a statutory maximum sentence is less than

the minimum of the applicable Guideline range, the statutory maximum sentence

shall constitute the recommended sentence under the Guidelines.” United States

v. Benally, 541 F.3d 990, 993 (10th Cir. 2008).

      Because Samuels’s minimum guideline sentence, even after Amendment

750, was greater than the statutory maximum sentence, he is not entitled to a

sentence reduction. Cf. Sharkey, 543 F.3d at 1238–39 (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 career-offender Guidelines). Therefore, the district court did not

abuse its discretion in denying the § 3582(c)(2) motion.

      Samuels also argues that the district court incorrectly calculated the amount

of crack cocaine attributable to him. Samuels did not raise this issue in a direct

appeal and cannot now use § 3582(c)(2) to collaterally attack his sentence. See

Smartt, 129 F.3d at 542–43 (holding district court does not have jurisdiction

under § 3582 to consider collateral sentencing issues). A collateral attack

“complain[s] about the substance of, or proceedings that determined, a

defendant’s original sentence or conviction.” United States v. Chavez-Salais, 337

F.3d 1170, 1172 (10th Cir. 2003). In contrast, § 3582(c)(2) only gives district

                                         -4-
courts the authority “to modify a sentence based on events occurring after the

original sentence was imposed.” Id.; see also United States v. Torres-Aquino, 334

F.3d 939, 941 (10th Cir. 2003) (describing the difference between a § 3582(c)(2)

motion and a collateral attack). By challenging the quantity of drugs calculated

by the sentencing court, Samuels is attempting to use his § 3582(c)(2) motion as a

vehicle to challenge the substance of, or the proceedings that determined, his

original sentence. Therefore, we will not consider this claim.

      Finally, “an appeal may not be taken in forma pauperis if the trial court

certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(3). For

the same reasons stated by the district court, we find that this appeal is not taken

in good faith. Samuels has “failed to show the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir.

2007); see also 28 U.S.C. §§ 1915(a)(3), (e)(2). Accordingly, Samuels’s motion

for leave to proceed in forma pauperis is denied.

                                 III. Conclusion

      We therefore AFFIRM the district court’s denial of the § 3582(c)(2)

motion. The motion for leave to proceed in forma pauperis is DENIED.

                                                     Entered for the Court,

                                                     Timothy M. Tymkovich
                                                     Circuit Judge


                                          -5-
