                                                                                FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                        February 19, 2009
                                  TENTH CIRCUIT
                             __________________________                Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 08-5078
                                                              (N.D. Okla.)
 ROBERT DEWAYNE LEBEAU,                            (D.Ct. No. 4:07-CR-00004-HDC-1)

           Defendant - Appellant.
                          ____________________________

                               ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



       After examining the briefs and 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. The case is therefore

ordered submitted without oral argument.

       Robert D. LeBeau appeals from an 18 U.S.C. § 3582(c)(2) resentencing for

a crack cocaine offense. Because the issue he raises has been recently resolved

contrary to his position, we affirm.

       *
         This order and judgment is not binding precedent, except under the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. BACKGROUND

      In July 2008, LeBeau pled guilty to knowingly and intentionally possessing

with intent to distribute 5 grams or more of crack cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). The Presentence Investigation Report

(PSR) determined LeBeau’s offense level was 23, which included a 3-level

reduction for acceptance of responsibility. His Criminal History Category was

VI. The guideline range was 92 to 115 months imprisonment. The district court

sentenced him to 100 months.

      After he was sentenced the United States Sentencing Commission amended

the drug quantity table in USSG §2D1.1(c) to reduce the sentencing disparity

between crack cocaine and powder cocaine. USSG App. C, Amend. 706 (2007).

The amendment reduced the base offense levels for crack-cocaine-related offenses

by two levels. It was made retroactive. See United States v. Rhodes, 549 F.3d

833, 835 (10th Cir. 2008).

      Wishing to take advantage of the amendment’s retroactive effect, LeBeau

petitioned the court for a sentence reduction, as permitted by 18 U.S.C.

§ 3582(c)(2). Under the amended guideline his sentencing range was 77 to 96

months imprisonment. He also requested a downward variance. The court

reduced his sentence to 77 months, but refused his request for a variance. LeBeau




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now claims the district court procedurally erred.

                                  II. DISCUSSION

      Our discussion is brief because the issue presented has been resolved in this

circuit. “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.” Rhodes, 549

F.3d at 837. A district court is without authority to grant a variance from the

amended crack cocaine guidelines. Id. at 841. Since the court had no authority to

vary from the guidelines, an explanation for its refusal to do so is unnecessary.

      LeBeau relies on Kimbrough v. United States, which recognized that in an

original sentencing the sentencing guidelines relevant to cocaine offenses must be

applied in an advisory manner subject to the particular circumstances of each

case. 128 S.Ct. 558, 574-76 (2007). LeBeau asserts the district court misstated

the law of Kimbrough and failed to apply the guidelines in an advisory fashion in

his resentencing. We reject that argument. We need not critique the district

court’s Kimbrough analysis. But see United States v. Sharkey, 543 F.3d 1236,

1239 (10th Cir. 2008). 1 It was without authority to grant a variance at

      1
         We explained in United States v. Price that “even if [United States v.] Booker
[543 U.S. 220 (2005)] could be read to be an implicit lowering of defendant’s sentencing
range, § 3582(c)(2) only expressly allows a reduction where the Sentencing Commission,
not the Supreme Court, has lowered the range.” 438 F.3d 1005, 1007 (10th Cir. 2006).
Thus, “Booker does not provide a basis for a sentence reduction under § 3582(c)(2).” Id.
Like Booker, the rule in Kimbrough also originated with the Supreme Court and not the
Sentencing Commission. As a result, Kimbrough is also not a basis for relief under
§ 3582(c)(2), which permits a reduction in sentence only if consistent with Sentencing
Commission policy statements.

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resentencing, whether based on Kimbrough or not.

      LeBeau also argues a district court retains discretion to vary below the

amended guideline range because United States v. Booker, 543 U.S. 220 (2005),

made the sentencing guidelines advisory. This argument relies on the rationale

set forth in United States v. Hicks, 472 F.3d 1167, 1170-71 (9th Cir. 2007). We

specifically rejected this reasoning in Rhodes, because “modification proceedings

under § 3582(c)(2) are much more narrow in scope than original sentencing

proceedings” and the statute’s plain language only authorizes consideration of the

amended guidelines and applicable policy statements in sentence modification

proceedings. Rhodes, 549 F.3d at 840. The district court’s resentencing

discretion is restricted to a sentence within the modified guideline range. Id.

      AFFIRMED.


                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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