                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       July 17, 2012

                                                                       Elisabeth A. Shumaker
                                   TENTH CIRCUIT                           Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,
                                                           No. 12-6020
 v.                                                (D.C. No. 5:91-CR-00052-R-1)
                                                           (W.D. Okla.)
 CHARLES EDWARD MCINTYRE,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.



      Charles Edward McIntyre challenges the district court’s determination that it

lacked authority to modify his sentence. Exercising jurisdiction under 18 U.S.C. § 3742

and 28 U.S.C. § 1291, we affirm.



      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
                                            I

      In 1991, a jury convicted McIntyre of various drug trafficking offenses, including

possession with intent to distribute 1.6 kilograms of crack cocaine. The sentencing judge

held McIntyre accountable for more than 15 kilograms of crack cocaine. This drug

quantity, combined with a leadership enhancement and McIntyre’s criminal history,

resulted in a mandatory sentence of life imprisonment. See United States v. McIntyre,

997 F.2d 687, 709-10 (10th Cir. 1993) (affirming the sentence). The court later reduced

McIntyre’s sentence to 360 months based on a 1994 amendment to the United States

Sentencing Guidelines.

      On October 21, 2010, the United States Sentencing Commission promulgated

Amendment 750 to implement the Fair Sentencing Act of 2010. See U.S.S.G. app. C,

amend. 750. This amendment, which substantially increases the threshold quantity of

crack cocaine required to trigger mandatory minimum penalties, was subsequently made

retroactive by the Commission. See U.S.S.G. § 1B1.10(c).

      Shortly thereafter, McIntyre filed a motion under 18 U.S.C. § 3582(c)(2) to further

reduce his sentence based on Amendment 750. The district court, however, concluded

that the amendment did not apply to McIntyre and denied the motion. McIntyre now

appeals.

                                           II

      We review de novo the scope of a district court’s authority to modify a sentence

                                           -2-
under § 3582(c)(2). United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008). A

district court may modify a sentence under this section only when a subsequent

amendment by the Commission has the “effect of lowering the defendant’s applicable

[G]uideline range.” U.S.S.G. § 1B1.10 (a)(2)(b); see also 18 U.S.C. § 3582(c)(2).

       Amendment 750 “does not lower the sentences for offenses” that involve “8.5

kilograms or more” of crack cocaine. U.S.S.G. app. C, amend. 750 cmt. McIntyre’s

sentence, however, is based on more than 15 kilograms. As such, Amendment 750 has

no effect on his Guideline range, and the district court properly concluded that it lacked

authority to reduce McIntyre’s sentence.

       McIntyre argues that he is eligible for a reduction because the district court should

have held him accountable for no more than the 1.6 kilograms of cocaine base charged in

his indictment. We disagree. It is well-established that a sentencing court must

determine drug quantity based on a defendant’s relevant conduct, not the amount

charged. See United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10th Cir. 2006).

Moreover, a proceeding under § 3582(c)(2) is an inappropriate vehicle for arguing that a

sentence was incorrectly imposed. These arguments should be raised on direct appeal or

in a 28 U.S.C. § 2255 habeas petition. See United States v. Torres-Aquino, 334 F.3d 939,

941 (10th Cir. 2003).

                                            III

       The district court’s order denying McIntyre’s § 3582(c)(2) motion is

                                            -3-
AFFIRMED. We GRANT McIntyre’s motion to proceed in forma pauperis.



                                   Entered for the Court



                                   Carlos F. Lucero
                                   Circuit Judge




                                     -4-
