                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 25, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 08-1255
                                               (D.C. No. 96-CR-00444-EWN-1)
 ARNIE PORTER,                                            (D. Colo.)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and HARTZ, Circuit Judges.


      The defendant filed a motion in the district court seeking a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2), which retroactively reduced certain

prior final sentences for crack cocaine convictions. He asked the trial court to

reduce his prior final sentence below the amended Guideline range. The court

reduced Defendant’s sentence to the bottom of the amended range but refused to



      *
        This order and judgment is not binding precedent, except under the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 that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2). Therefore, this case
is ordered submitted without oral argument.
consider the additional reduction, indicating it lacked authority to do so.

Defendant appeals that decision.

      In the interim, this court decided United States v. Rhodes, 549 F.3d 833

(10th Cir. 2008), which forecloses Defendant’s argument.

      AFFIRMED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




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