                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-6074
 v.                                           (D.Ct. No. 5:00-CR-00025-R-10)
                                                       (W.D. Okla.)
 DELMAR DELANO GARRETT, JR.,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Senior 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 Delmar Delano Garrett, Jr., a federal inmate, appeals the district

court’s denial of his motion brought pursuant to 18 U.S.C. § 3582(c)(2) for the

      *
         This order and judgment is not binding precedent except under the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.
purpose of modifying his sentence based on Amendment 706 to the United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.



                       I. Factual and Procedural Background

      On February 16, 2000, a seventy-seven-count federal indictment issued

charging thirteen defendants, including Mr. Garrett, with various drug-related

offenses, including participation in a drug conspiracy. See United States v.

Garrett, 402 F.3d 1262, 1263 (10 th Cir. 2005). Specifically, the indictment named

Mr. Garrett in four counts, including: (1) conspiracy to possess with intent to

distribute and to distribute cocaine power, cocaine base (crack cocaine), and

phencyclidine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possession of

nine ounces of crack cocaine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1); (3) knowingly and intentionally using a communication facility to

facilitate the acquisition and distribution of cocaine, in violation of 21 U.S.C.

§ 843(b); and (4) being a felon in possession of three firearms, in violation of 18

U.S.C. § 922(g)(1). On June 27, 2000, Mr. Garrett pled guilty to possession of

nine ounces of crack cocaine with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), in exchange for the government’s motion to dismiss the remaining

claims, including the conspiracy count. See Garrett, 402 F.3d at 1263. After

accepting his guilty plea, the district court dismissed the remaining counts against

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him.



       After Mr. Garrett pled guilty, a federal probation officer prepared a

presentence report in conjunction with the 1998 Guidelines to determine his

recommended sentence. While the offense to which he pled guilty involved the

possession of nine ounces of crack cocaine, the probation officer held Mr. Garrett

accountable for 6,677.75 grams, or 6.7 kilograms, of crack cocaine which he

purchased over a period of time from approximately March 1997 to April 1999.

Specifically, the probation officer explained this amount stemmed from crack

cocaine Mr. Garrett purchased from numerous suppliers during a common time

frame as part of two conspiracies.



       Based on Mr. Garrett’s possession of over 1.5 kilograms of crack cocaine,

the probation officer determined his base offense level was 38 pursuant to

§ 2D1.1 of the 1998 Guidelines. See U.S.S.G. § 2D1.1(c)(1) (1998). The

probation officer added a two-level increase for possession of firearms in

connection with the offense and another two-level increase for obstruction of

justice for threatening and assaulting a confidential source, for a total offense

level of 42. A criminal history category of V, together with a total offense level

of 42, resulted in a Guidelines range of 360 months to life in prison. See Garrett,

402 F.3d at 1264; U.S.S.G. Ch. 5, Pt. A (1998).

                                          -3-
      Mr. Garrett initially filed objections to the presentence report, including

objections for holding him accountable for the crack cocaine he purchased from

various suppliers as well as the quantity calculated stemming from such

purchases. However, he later withdrew all objections to the presentence report.

See Garrett, 402 F.3d at 1264. At the government’s request, the district court

departed downward from the recommended sentencing range of 360 months to life

in prison and imposed a sentence of 220 months imprisonment based on Mr.

Garrett’s cooperation. See id. Mr. Garrett did not appeal his conviction or

sentence, including application of the 6.7 kilograms of relevant conduct in

assessing his base offense level. See id.



      Thereafter, Mr. Garrett unsuccessfully filed a § 2255 motion to vacate his

sentence and petitions for leave to file a successive § 2255 motion. See Garrett v.

United States, No. 06-6026 (10 th Cir. Feb. 13, 2006) (unpublished order) (denying

petition to file successive motion); United States v. Garrett, 402 F.3d 1262 (10 th

Cir. 2005) (vacating and remanding on issue of whether counsel was requested to

file a notice of appeal); Garrett v. United States, No. 03-6182 (10 th Cir. Aug. 19,

2003) (unpublished order) (denying petition to file successive § 2255 motion).

Following these actions, Mr. Garrett filed the instant motion pursuant to 18

U.S.C. § 3582(c)(2) requesting a reduction of his sentence in conjunction with

Amendment 706, which modified the Drug Quantity Table in U.S.S.G. § 2D1.1(c)

                                            -4-
downward two levels for crack cocaine. 1



      Thereafter, the district court appointed Mr. Garrett counsel, who then filed

a supplemental brief on March 31, 2009. Counsel argued for a sentence reduction

based on the constitutional principles recognized in United States v. Booker, 543

U.S. 220 (2005), pointing out a jury did not hear evidence on the drug quantities

used to increase Mr. Garrett’s sentence. Counsel also asserted the policy

statement promulgated by the Sentencing Commission in U.S.S.G. § 1B1.10

unconstitutionally operated as a bar to the district court’s exercise of jurisdiction

for the purpose of reducing his sentence under Booker. While recognizing this

court previously rejected this argument, counsel claimed our decisions did not

address various distinct legal issues implicated in the Sentencing Commission’s

promulgation of the policy statement nor reconciled our prior decisions in United

States v. Lee, 957 F.2d 770 (10 th Cir. 1992), and United States v. Tsosie, 376 F.3d

1210, 1218 (10 th Cir. 2004), which he stated held “policy statements did not carry

the same force and effect of laws.”



      In a one-page order, the district court denied Mr. Garrett’s § 3582(c)(2)

motion on grounds he did not qualify for a sentence reduction because the 6.7


      1
       See U.S.S.G. Supp. to App. C, Amend. 706 (Reason for Amend.);
Amends. 712 and 713 (Mar. 3, 2008 Supp.); U.S.S.G. § 1B1.10(a)(2) (2008).

                                           -5-
kilograms of crack cocaine for which he was accountable exceeded 4.5 kilograms,

thus rendering him ineligible for relief. In addition, it held Booker had no

application to a § 3582(c)(2) sentence modification proceeding.



                                   II. Discussion

      Mr. Garrett now appeals the denial of his motion for a reduction of his

sentence, claiming the district court erred as a matter of law in summarily

denying him relief pursuant to 18 U.S.C. § 3582(c)(2). In making this assertion,

Mr. Garrett raises the same arguments raised before the district court, claiming

the Sentencing Commission policy statement in § 1B1.10 cannot limit the district

court’s jurisdiction and that the principles announced in Booker should apply once

a court’s jurisdiction is invoked under § 3582(c). In so doing, he acknowledges

that in United States v. Rhodes, 549 F.3d 833, 840 (10 th Cir. 2008), cert. denied,

129 S. Ct. 2052 (2009), we held Booker does not apply to sentence modification

proceedings conducted under § 3582(c)(2) but claims this court “failed to

recognize the continuing impact of the remedial opinion in Booker” or to “address

several critical, distinct legal issues implicated in the Sentencing Commissions’s

promulgation of policy statements and the limited impact of those statements on

the jurisdiction of the court.” He also recognizes that in United States v. Dryden,

563 F.3d 1168, 1170 (10 th Cir. 2009), cert. denied, ___ S. Ct. ___, 2009 WL

2495975 (U.S. Oct. 5, 2009) (No. 09-5764), we construed the current policy

                                         -6-
statement in § 1B1.10 as simply a restatement of Congressional direction but

claims Dryden did not address the critical distinction between a statute and a

policy statement.



       In addressing Mr. Garrett’s appeal, “‘[w]e review de novo the district

court’s interpretation of a statute or the sentencing guidelines.’” United States v.

Brown, 556 F.3d 1108, 1111 (10 th Cir. 2009) (quoting United States v. Smartt, 129

F.3d 539, 540 (10 th Cir. 1997)), cert. denied, ___ S. Ct. ___, 2009 WL 1981863

(U.S. Oct. 5, 2009) (No. 09-5145). “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).” Id. (relying on United States v. Dorrough, 84 F.3d 1309, 1311

(10 th Cir. 1996)).



       Applying our standard of review, we turn to the relevant part of § 3582, on

which Mr. Garrett brought his motion for a reduction of sentence and the district

court relied in denying his motion. It states:

       [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 pursuant to 28 U.S.C.
       [§] 994(o), ... the court may reduce the term of imprisonment, after
       considering the factors set forth in section 3553(a) to the extent that
       they are applicable, if such a reduction is consistent with applicable
       policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). In November 2007, the Sentencing

                                          -7-
Commission lowered crack cocaine sentences by promulgating Amendment 706 to

the Guidelines, which became retroactive in March 2008. See U.S.S.G. Supp. to

App. C, Amend. 706 (Reason for Amend.); Amends. 712 and 713 (Mar. 3, 2008

Supp.); U.S.S.G. § 1B1.10(a)(2) (2008). Amendment 706 modified the drug

quantity thresholds in U.S.S.G. § 2D1.1(c), thereby lowering the sentencing range

so that “[c]rack cocaine offenses for quantities above and below the mandatory

minimum threshold quantities ... [were] adjusted downward by two levels.”

U.S.S.G. Supp. to App. C, Amend. 706 at 230 (Reason for Amend.). As a result,

instead of 1.5 or more kilograms of crack cocaine resulting in an offense level of

38, the revised amount requires 4.5 or more kilograms of crack cocaine for an

offense level of 38. See U.S.S.G. § 2D1.1(c)(1) (2008). Following Amendment

706, another amendment, Amendment 712, was promulgated by the Sentencing

Commission, which amended § 1B1.10 and resulted in limiting reduction of a

sentence by amendment by providing, in part: “A reduction in the defendant’s

term of imprisonment is not consistent with this policy statement and therefore is

not authorized under 18 U.S.C. § 3582(c)(2) if ... an amendment listed in

subsection (c) does not have the effect of lowering the defendant’s applicable

guideline range.” See U.S.S.G. § 1B1.10(a)(2)(B) (2008); see also Amend. 712 at

50-51 (March 3, 2008 Supp.).



      Applying these provisions to the circumstance presented, it is clear

                                         -8-
retroactive application of a two-level reduction under Amendment 706 does not

apply here. As the district court indicated, Mr. Garrett does not qualify for a

sentence reduction because the 6.7 kilograms of crack cocaine for which he was

accountable render him ineligible for relief. Moreover, the retroactive application

of a two-level reduction to his base offense level of 38, down to a level of 36,

when combined with his four-level upward adjustment for possession of firearms

and obstruction of justice, results in a total offense level of 40, which, together

with his criminal history category of V, continues to result in a sentencing range

of 360 months to life imprisonment under the current Guidelines. See U.S.S.G.

§ 2D1.1(c)(1) (2008) and Ch. 5, Pt. A (2008). Thus, the applicable Guidelines

range would be the same as it was at the time of his sentencing. As a result, “a

reduction” in Mr. Garrett’s term of imprisonment “is not consistent with [the]

policy statement [in § 1B1.10] and therefore is not authorized under 18 U.S.C.

§ 3582(c)(2)” because a two-level reduction in the offense level under

Amendment 706, as listed in § 1B1.10(c), “does not have the effect of lowering

[his] applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) (2008). As the

government points out, while Mr. Garrett is not eligible for such a reduction, he

retains the benefit of a below-Guidelines-range sentence of 220 months

imprisonment which the district court imposed at sentencing.



      We next address Mr. Garrett’s argument U.S.S.G. § 1B1.10 violates the

                                          -9-
Constitution because the Sentencing Commission cannot deny jurisdiction to

Article III courts and, therefore, the principles announced in Booker should apply

once a court’s jurisdiction is invoked under § 3582(c). To begin, as the Supreme

Court pointed out in Booker, the Sentencing Commission “is an independent

agency that exercises policymaking authority delegated to it by Congress” and

Congress’ delegation of authority to that Commission to promulgate Guidelines

does not violate the separation of powers principles or otherwise exceed

Congress’ powers. See 543 U.S. at 242-43. More specifically, after severing and

excising 18 U.S.C. §§ 3553(b)(1) and 3742(e) of the Sentencing Act, the Booker

Court determined “[t]he remainder of the Act satisfies the Court’s constitutional

requirements” which it listed as being “(1) constitutionally valid ..., (2) capable of

functioning independently ..., and (3) consistent with Congress’ basic objectives

in enacting the statute ....” Id. at 258-59 (quotation marks and citations omitted).

Of course, the remainder of the Sentencing Act to which the Booker Court

referred includes § 3582(c).



      In United States v. Price, we held “a district court is authorized to modify a

defendant’s sentence only in specified instances where Congress has expressly

granted the court jurisdiction to do so” and explained that by the very terms of

§ 3582(c)(2), “the court only has authority to modify a sentence when the range

has been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§]

                                         -10-
994(o).” 438 F.3d 1005, 1006-07 (10 th Cir. 2006) (quotation marks and citation

omitted). In Dryden, we rejected an argument similar to Mr. Garrett’s that the

Sentencing Commission’s policy statement in § 1B1.10(a)(2) impermissibly

limited the district court’s jurisdiction to reduce a sentence under § 3582(c)(2).

See 563 F.3d at 1170. We held the language in § 3582(c)(2), stating that a court

may reduce the term of imprisonment when “a sentencing range ... has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C.

[§] 994(o),” places a statutory limitation on resentencing and “is identical to the

requirement in U.S.S.G. § 1B1.10(a)(2) that the amendment to the guidelines have

the effect of lowering the defendant’s applicable guideline range.” Id. at 1170-71

(quotation marks and citation omitted). Finally, in Rhodes, we explained the

principles announced in Booker concerning 18 U.S.C. § 3553 applied only to

original sentences, and not to proceedings under § 3582(c)(2). See 549 F.3d at

840. We find the principles in Rhodes, Dryden, and Price fully dispositive of Mr.

Garrett’s arguments and further note “we are bound by the precedent of prior

panels.” Dryden, 563 F.3d at 1171 n.1 (quotation marks and citation omitted).



      Applying these principles to the case presented here, it is clear

§ 1B1.10(a)(2)(B) does not impermissibly define and limit a district court’s

authority to reduce a sentence under § 3582(c). In this case, it prohibited a

reduction in Mr. Garrett’s term of imprisonment because Amendment 706, as

                                        -11-
listed in § 1B1.10(c), “does not have the effect of lowering [his] applicable

guideline range.” Moreover, because Booker is not applicable to § 3582(c)(2)

proceedings, it is also not applicable here. For these reasons, Mr. Garrett cannot

prevail on his constitutional and Booker arguments.



                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s order denying

Mr. Garrett’s motion filed pursuant to 18 U.S.C. § 3582(c)(2).

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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