                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS March 19, 2009
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court


 UNITED STATES OF AMERICA,
               Plaintiff–Appellee,                       No. 08-5109
          v.                                   (D.C. No. 03-CR-00078-TCK-1)
 SHAWN TYWAN SOLOMON,                                    (N.D. Okla.)
               Defendant–Appellant.


                           ORDER AND JUDGMENT *


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


      Defendant filed a motion in the district court for a reduction of sentence

pursuant to 18 U.S.C. § 3582(c) based on the retroactive crack guideline

amendment. The court granted this motion and reduced Defendant’s sentence to

the bottom of the revised guideline range. However, the court declined

Defendant’s request to vary below the revised guideline range. Defendant appeals

the denial of his variance request.

      After briefing was completed in this case, a panel of this court decided


      *
        This order and judgment is not binding precedent, except under the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 panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f).
United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008). Rhodes held that a

district court does not have the authority in a § 3582(c)(2) resentencing

proceeding to impose a sentence below the amended guideline range. Id. at 841.

That decision is dispositive of this appeal. We therefore AFFIRM the sentence

imposed by the district court.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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