                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 4, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-6239
          v.                                           (W.D. Oklahoma)
 EVERETT LLOYD OWENS, JR.,                      (D.C. No. 5:06-CR-00248-L-7)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.



I. Introduction

      Defendant-Appellant Everett Lloyd Owens appeals the district court’s

denial of his motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence. Owens

is currently serving a sentence for Possession of Cocaine Base (“crack”) With

Intent to Distribute. After the Sentencing Commission promulgated Amendment

706 to reduce the sentencing disparity between crack and powder cocaine offenses

and made the amendment retroactive, Owens moved the district court for a


      *
        This order and judgment is not binding precedent except under the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.
reduced sentence. His motion was denied because the reduction in his base

offense level under the amended Sentencing Guidelines was offset by his loss of a

2-level reduction for being a minor participant. He appeals, arguing the loss of

the minor participant reduction was an unintended consequence of Amendment

706 and a sentence reduction would be consistent with the Sentencing

Commission’s intent to reduce the sentencing disparity between crack and powder

cocaine offenses. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

rejects Owens’s appeal because the sentence reduction he seeks is inconsistent

with the Sentencing Commission’s applicable policy statement, U.S.S.G.

§ 1B1.10, and the district courts do not have authority to reduce sentences except

in accordance with the policy statement.

II. Background

      Owens was charged with being a member of a drug distribution conspiracy

consisting of at least twenty-seven individuals. He pleaded guilty to Possession

of Cocaine Base With Intent to Distribute in violation of 21 U.S.C. § 841(a)(1).

The district court calculated Owens’s advisory Guidelines range by attributing

50.8 grams of crack to him, resulting in a base offense level of 32 under the pre-

Amendment Drug Quantity Table at U.S.S.G. § 2D1.1(c)(4). Owens was deemed

a minor participant in the conspiracy, which entitled him to a 2-level reduction

pursuant to § 3B1.2(b) and an additional 2-level reduction pursuant to

§ 2D1.1(a)(3)(i). His offense level was further reduced by 2 levels by the

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application of the “safety valve,” § 2D1.1(b)(9). Finally, Owens received a 3-

level reduction for acceptance of responsibility under § 3E1.1(a)-(b). His final

adjusted offense level was 23. He was found eligible to avoid the statutory five

year mandatory minimum sentence, and with a criminal history category of I, his

Guidelines range was 46-57 months’ imprisonment. The district court sentenced

Owens to 46 months’ imprisonment.

      After Owens was sentenced, the Sentencing Commission amended the drug

quantity table at § 2D1.1 to reduce the sentencing disparity between crack and

powder cocaine offenses. The Sentencing Commission made Amendment 706

retroactive, enabling individuals sentenced under the earlier drug quantity table to

move for sentence reductions pursuant to 18 U.S.C. § 3582(c)(2).

      Owens moved the district court pursuant to 18 U.S.C. § 3582(c)(2) for a

sentence reduction in light of Amendment 706. The district court recalculated

Owens’s Guidelines range under the amended drug quantity table. Under the

amended drug quantity table, Owens’s new base offense level was reduced two

levels to 30. With this offense level, he was no longer eligible for the 2-level

§ 2D1.1(a)(3)(i) enhanced reduction for being a minor participant in the crime,

which is only available to offenders with base offense levels of 32 or above.

Because Owens’s 2-level reduction to his base offense level rendered him

ineligible for the 2-level minor participant reduction, there was no net overall

reduction in Owens’s offense level under Amendment 706. His sentence,

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moreover, was already at the bottom of the Guidelines range of 46-57 months’

imprisonment. Because of this, the district court denied his motion for a reduced

sentence. Owens appeals.

III. Discussion

      This case presents one issue: whether the district court erred in refusing to

reduce Owens’s sentence pursuant to Amendment 706. Owens acknowledges that

under a straightforward application of Amendment 706, his offense level is

unchanged. He argues, however, that such an interpretation of the amendment

constitutes a misapplication of the Guidelines warranting reversal.

      A district court’s decision to deny a motion to reduce a sentence is

reviewed for abuse of discretion. United States v. Sharkey, 543 F.3d 1236, 1238

(10th Cir. 2008). Whether the district court correctly interpreted the Guidelines,

however, is a question of law and is reviewed de novo. Id.

      Through 18 U.S.C. § 3582(c), Congress has limited the instances in which a

court may reduce a term of imprisonment. The only relevant instance here is

found at 18 U.S.C. § 3582(c)(2), which allows a district court to reduce a

defendant’s sentence in the event the defendant has been “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission . . . 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.” The

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statute thus sets out three requirements which must be met for a district court to

reduce a sentence: (1) the defendant must be sentenced based on a sentencing

range subsequently lowered by the Sentencing Commission, (2) the district court

must consider the § 3553(a) factors to the extent they are applicable, and (3) the

reduction must be consistent with the Sentencing Commission’s applicable policy

statements.

      The Sentencing Commission’s applicable policy statement is at U.S.S.G.

§ 1B1.10. The policy statement provides that a court must calculate the

defendant’s Guidelines range under the Guidelines as amended. Id.

§ 1B1.10(b)(1). Unless the defendant originally received a below-Guidelines

sentence, which did not happen here, the policy statement explains that “the court

shall not reduce the defendant’s term of imprisonment . . . to a term that is less

than the minimum of the amended guideline range.” Id. § 1B1.10(b)(2)(A).

      Under Amendment 706, Owens’s Guidelines range is unchanged because

the 2-level reduction in his offense level is offset by his inability to receive the

§ 2D1.1(a)(3)(i) minor participant reduction. His term of imprisonment is already

the minimum of the applicable Guidelines range. Under a plain reading of the

policy statement, therefore, the district court may not further reduce Owens’s

sentence.

      Owens recognizes the result of a straightforward application of Amendment

706, but contends it is the result of an unanticipated anomaly. He asserts he is

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unquestionably within the class of offenders the Sentencing Commission intended

to help when it promulgated Amendment 706. He further argues it would be

consistent with the intent of the Sentencing Commission to allow a reduction in

his sentence notwithstanding the policy statement.

      This argument, however, is foreclosed by Circuit precedent. This court has

ruled that 18 U.S.C. § 3582(c)(2) gives the courts authority to reduce sentences

only when doing so is consistent with the applicable policy statement. United

States v. Rhodes, 549 F.3d 833, 841 (10th Cir. 2008). Owens’s inability to obtain

relief may well be the result of an unanticipated interaction between Amendment

706 and U.S.S.G. § 2D1.1(a)(3). Nonetheless, the district court correctly denied

Owens’s motion because it lacked authority to reduce his sentence. If Owens is

to obtain relief, it must come from the Sentencing Commission or Congress.

      Owens argues this reading of the statute gives the policy statement binding

effect and turns the bottom of the Guidelines range into a mandatory minimum

sentence in sentence reduction proceedings in violation of United States v.

Booker, 543 U.S. 220 (2005). Booker, however, is inapplicable in sentence

modification proceedings. Rhodes, 549 F.3d at 840. There is no constitutional

problem, therefore, with the Guidelines setting a mandatory floor in proceedings

under 18 U.S.C. § 3582(c).




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IV. Conclusion

      Because the district court lacked authority to reduce Owens’s sentence

below the minimum Guidelines sentence available under Amendment 706, it did

not err in refusing to reduce Owens’s sentence. The decision of the district court

is therefore affirmed.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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