                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES COURT OF APPEALS                       July 29, 2009
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                          No. 08-6265
 v.                                               Western District of Oklahoma
 RAYMOND LADELL SLOAN,                           (D.C. No. 5:93-CR-00133-W-3)

              Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.


      Raymond Ladell Sloan, a federal prisoner proceeding pro se, appeals the

district court’s denial of his sentence modification request under 18 U.S.C. §

3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291 and affirm.




      *
       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). This case is
therefore submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. Procedural Background

      In November 1993, a jury convicted Mr. Sloan of manufacturing, possessing,

and distributing cocaine base, also known as crack cocaine, a Schedule II controlled

substance, violating 21 U.S.C. § 841(a)(1). A federal probation officer prepared a

presentence report with the then-current Guidelines to determine Mr. Sloan’s

sentence. The 4.8 kilograms of cocaine base attributed to Mr. Sloan corresponded

with a base offense level of 38. The probation officer then enhanced his base

offense by four levels for his role in the offenses. His total offense level of 42,

combined with his criminal history of III, resulted in a Guideline sentence range of

360 months’ to life imprisonment. See U.S.S.G. § 2D1.1(c)(1) (1993). Mr. Sloan

objected to the offense level calculation, the four level enhancement, and his

criminal history category.

      At his sentencing hearing on February 9, 1994, the district court sustained

Mr. Sloan’s objection to the four-level enhancement, finding that a two-level

enhancement was more appropriate. Mr. Sloan’s total offense level was

recalculated at 40; however, the Guideline range remained the same. Id. The

district court sentenced Mr. Sloan to 360 months’ imprisonment followed by ten

years of supervised release. On direct appeal, we affirmed Mr. Sloan’s conviction

and sentence. United States v. Sloan, 65 F.3d 861 (10th Cir. 1995), cert. denied,

516 U.S. 1097 (1996).

      Mr. Sloan filed a motion under 28 U.S.C. § 2255, which the district court

denied. Mr. Sloan then sought a certificate of appealability from this Court, which

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we denied. See United States v. Sloan, No. 97-6375 (10th Cir. Feb. 25, 1998). Mr.

Sloan then filed a request with this Court for authorization to file a successive 28

U.S.C. § 2255 motion in the district court. We denied that request, as well. See

Sloan v. United States, No. 01-6255 (10th Cir. Jul. 25, 2001).

      On August 6, 2008, Mr. Sloan filed the instant motion to modify his prison

term under 18 U.S.C. § 3582(c) based on Amendment 706 to U.S.S.G. § 2D1.1(c),

which lowered the Drug Quantity Table two levels for crack cocaine. See U.S.S.G.

§ 2D1.1 (Nov. 1, 2007); U.S.S.G. Supp. to App’x C, Amend. 706. The district

court determined Mr. Sloan did not qualify for a reduction in his sentence because

the 4.8 kilograms of crack cocaine attributable to him still exceeded the revised

quantity amount of 4.5 kilograms for crack cocaine. Thus, the amendment would

still not change his Guideline range. See U.S.S.G. § 2D1.1(c)(1).

                                    II. Discussion

      Mr. Sloan now appeals the district court’s denial of his motion to modify his

term of imprisonment under 18 U.S.C. § 3582(c), claiming the district court failed

to apply Amendment 706 or 715 retroactively to his sentence. Mr. Sloan also

argues he should be resentenced under Booker for the purpose of applying the

Guidelines to his sentence in an advisory manner and redetermining the drug

quantity used to assess his base offense level, which he claims the district court

improperly found by applying a preponderance of the evidence standard.

      “We review de novo the district court’s interpretation of a statute or the

sentencing guidelines.” United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997)

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(quotation marks and citation omitted). “We review for an abuse of discretion a

district court’s decision to deny a reduction in sentence under 18 U.S.C. §

3582(c)(2).” United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008).

When a “motion for sentence reduction is not a direct appeal or a collateral attack

under 28 U.S.C. § 2255, the viability of [the] motion depends entirely on 18 U.S.C.

§ 3582(c).” Smartt, 129 F.3d at 540 (internal quotation, citation, and alteration

omitted).

      Section 3582(c)(2) allows a sentence reduction “in the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range that

has subsequently been lowered by the Sentencing Commission . . . .” 18 U.S.C. §

3582(c)(2). In such a case, “the court may reduce the term of imprisonment, 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.” Id. (emphasis added).

      The applicable policy statement, U.S.S.G. § 1B1.10, provides that where “the

guideline range applicable to [a] defendant has subsequently been lowered as a

result of an amendment to the Guidelines Manual listed in subsection (c) below, the

court may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. §

3582(c)(2).” U.S.S.G. § 1B1.10(a) (2008). Subsection (c) includes Amendments

706 and 715 among the enumerated amendments. Id. § 1B1.10(c).              In

determining the extent of any reduction under § 3582(c)(2), “the court shall

determine the amended guideline range that would have been applicable to the

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defendant if the amendment(s) to the guidelines listed in subsection (c) had been in

effect at the time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). The

policy statement further provides that: “A reduction in the defendant’s term of

imprisonment is not consistent with [the] policy statement and therefore is not

authorized under 18 U.S.C. § 3582(c)(2) if . . . [a]n amendment listed in subsection

(c) does not have the effect of lowering the defendant's applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B) (emphasis added).

      Amendment 706 modified “the drug quantity thresholds” in U.S.S.G. §

2D1.1(c) and the Drug Quantity Table, “so as to assign, for crack cocaine offenses,

base offense levels corresponding to guideline ranges that include the statutory

mandatory minimum penalties.” U.S.S.G. Supp. to App’x C, Amend. 706 (Reason

for Amend.). Consequently, the current highest offense level of 38 would require a

quantity of 4.5 kilograms or more of cocaine, rather than the 1.5 kilograms

previously required for level 38. See id.

      On December 11, 2007, the United States Sentencing Commission voted to

make Amendment 706 retroactive, through Amendments 712 and 713. See U.S.S.G.

§ 1B1.10(a) and (c); U.S.S.G. Supp. to App’x C, Amends. 712 and 713.

Specifically, Amendment 713 changed U.S.S.G. § 1B1.10—the policy statement for

amended Guideline ranges, by listing Amendment 706 as one of the retroactive

amendments. See U.S.S.G. § 1B1.10(c), Amend. 713.

      Amendment 715 changes the provisions in offenses involving cocaine base

coupled with other controlled substances. The pertinent part states:

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      Exceptions to 2-level Reduction.–The 2-level reduction provided in
      subdivision (i) shall not apply in a case in which:
            (I) the offense involved 4.5 kg or more, or less than 250 mg, of cocaine
            base;


U.S.S.G. § 1B1.10 Amend. 715 (D)(ii) (emphasis added).

      At Mr. Sloan’s sentencing, the base offense level for the 4.8 kilograms of

cocaine base attributable to him was 38. Under Amendments 706 and 715, the

crack cocaine quantity for a base offense level of 38 is 4.5 kilograms. “A

reduction” in Mr. Sloan’s term of imprisonment “is not consistent with” the policy

statement in § 1B1.10 “and therefore is not authorized under 18 U.S.C. §

3582(c)(2)” because a two-level reduction in the offense level “does not have the

effect of lowering [his] applicable guideline range.” See U.S.S.G. §

1B1.10(a)(2)(B).

      We also reject Mr. Sloan’s claim that he is entitled to resentencing under

Booker for the purpose of applying the Guidelines in an advisory manner or

redetermining his base drug offense level. We have held § 3582(c)(2) motions may

not be employed to present Booker claims, as “§ 3582(c)(2) only expressly allows a

reduction where the Sentencing Commission, not the Supreme Court, has lowered

the [sentencing] range.” United States v. Price, 438 F.3d 1005, 1007 & n. 2 (10th

Cir. 2006). Furthermore, with respect to his base drug offense level, the policy

statement in U.S.S.G. § 1B1.10 provides:

      In determining whether, and to what extent, a reduction in the defendant’s term
      of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement is
      warranted, the court . . . shall substitute only the amendments listed in

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      subsection (c) for the corresponding guideline provisions that were applied when
      the defendant was sentenced and shall leave all other guideline application
      decisions unaffected.

U.S.S.G. § 1B1.10(b) (Nov. 1, 2007). Thus, under § 3582, we may only consider

whether Mr. Sloan is entitled to a two-level offense reduction under Amendment

706, and not whether another reduction of his sentence is warranted under the

Guidelines.

      Thus, we hold that the district court did not abuse its discretion in denying

his § 3582 motion.

                                   III. Conclusion

      For the reasons provided, we AFFIRM the United States District Court’s

order denying Mr. Sloan’s motion filed pursuant to 18 U.S.C. § 3582(c)(2).

      Appellant’s Motion to proceed in forma pauperis is GRANTED.



                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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