                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 22, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-3282
 v.                                                       (D. Kansas)
 CRAIG T. WILLIAMS,                            (D.C. No. 99-CR-10092-WEB-2)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, 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.

      In 2000, Craig T. Williams pleaded guilty to three counts of a three-count

indictment charging him with possessing with intent to distribute crack cocaine,

cocaine hydrochloride, and marijuana, all in violation of 21 U.S.C. § 841(a)(1).


      *
        This order and judgment is not binding precedent except under the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.
Utilizing the career offender provisions set out in U.S.S.G. § 4B1.1, rather than

the drug quantity provisions set out in U.S.S.G. § 2D1.1, the district court

sentenced Williams to a term of imprisonment of 216 months. 1 In a series of

amendments to the Sentencing Guidelines adopted in late 2007 and early 2008,

the United States Sentencing Commission decreased by two levels the base

offense level assigned to quantities of crack cocaine in § 2D1.1 and made that

change retroactive to those previously sentenced under § 2D1.1. United States v.

Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008) (setting out history of

Amendments 706 and 713 of the Sentencing Guidelines). Thereafter, Williams

filed a motion, pursuant to 18 U.S.C. § 3582(c), for a reduction in his sentence

pursuant to Amendments 706 and 713. The district court denied the motion,

concluding Williams was not entitled to relief because his base offense level was

set under the career offender guideline, rather than the crack cocaine guideline.

Thus, this appeal presents the following pure question of law: Did the district

court err in concluding Williams was not entitled to relief under § 3582(c)

because his offense level was set by application of the § 4B1.1 career offender

guideline, rather than the crack cocaine provisions set out in U.S.S.G. § 2D1.1? 2

      1
       This sentence represented a 46-month departure from the low-end of the
properly calculated advisory Guidelines range of 262-327 months’ imprisonment.
      2
       Although Williams did not file a timely notice of appeal, the failure to do
so does not implicate our jurisdiction. United States v. Garduno, 506 F.3d 1287,
1288-89 (10th Cir. 2007). Furthermore, because the United States did not raise
                                                                      (continued...)

                                         -2-
      In a decision issued shortly before the briefing was complete in this case,

we resolved this exact question. Sharkey, 543 F.3d at 1239. Sharkey holds that

when a defendant’s base offense level is set under the § 4B1.1 career offender

guideline, the defendant is not entitled to a reduction in his sentence pursuant to

Amendment 706 and § 3582(c). Id. It further holds that neither the decision in

United States v. Booker, 543 U.S. 220 (2005), nor in Kimbrough v. United States,

128 S. Ct. 558 (2007), alter that outcome. Sharkey, 543 F.3d at 1239.

      As Sharkey makes clear, the district court correctly denied Williams’

§ 3582(c) motion for a reduction in his sentence. Thus, the order of the United

States District Court for the District of Kansas denying Williams’ § 3582(c)

motion is hereby AFFIRMED. 3 Williams’ request to proceed on appeal in forma

pauperis is GRANTED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




      2
       (...continued)
the timeliness of Williams’ notice of appeal, and because the resolution of this
appeal on the merits will not lead to a waste of judicial resources, this court
proceeds to the merits of this appeal. United States v. Mitchell, 518 F.3d 740,
749-50 & n.13 (10th Cir. 2008).
      3
      Williams’ “Motion Requesting to Amend and/or Incorporate Addendum to
His Reply Brief to Government’s Brief to Appellant’s 18 U.S.C. § 3582(c)(2)
Motion” is granted.

                                         -3-
