                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-2227
 KEVIN PETTIES,                                  (D.C. No. CR-97-0638-JEC)
                                                          (D.N.M.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Kevin Petties pleaded guilty to participating in a conspiracy to distribute

cocaine base (“crack”). The district court sentenced Petties to 210 months’


      *
        This order and judgment is not binding precedent, except under the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.
imprisonment and 10 years’ supervised release. After the 2007 amendment of the

crack-related Sentencing Guidelines, the district court modified Petties’s sentence

to 168 months’ imprisonment. Petties now appeals his modified sentence,

challenging the district court’s denial of his request for a sentence below the

amended Sentencing Guidelines range. We exercise jurisdiction pursuant to 28

U.S.C. § 1291, and affirm.

                                           I

      A federal grand jury indicted Petties and eleven co-defendants on eighteen

counts of drug-related crimes. Petties pleaded guilty to one count of conspiracy

to possess with intent to distribute fifty grams or more of crack within 1000 feet

of a school in violation of 21 U.S.C. § 846, 841(a)(1), (b)(1)(A)(iii), and 860(a).

After Petties entered his plea, a probation officer prepared a presentence report

(“PSR”). The PSR listed a base offense level of 35, a 2-level enhancement for

Petties’s role as a leader in the criminal activity, and a 3-level reduction for

Petties’s acceptance of responsibility and timely providing authorities with

information concerning his involvement in the offense. Petties’s recommended

offense level was 34. With a criminal history category of IV, Petties’s Sentencing

Guidelines range was 210 to 262 months’ imprisonment. The district court

adopted the recommendations in the PSR and sentenced Petties to 210 months’

imprisonment and 10 years’ supervised release.

      On November 1, 2007, the United States Sentencing Commission

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promulgated Amendment 706, which amended the Drug Quantity Table in

U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amed. 706 (2007). Amendment 706

provided a 2-level reduction in base offense levels for crack-related offenses. Id.

On December 11, 2007, the Sentencing Commission promulgated Amendments

712 and 713, which, together, operated to make Amendment 706 retroactive.

Amendments 712 and 713 became effective on March 3, 2008.

      Petties filed a pro se motion requesting a reduction of his sentence under 18

U.S.C. § 3582(c)(2). Petties requested a sentence of 168 months’ imprisonment.

The government filed a response to Petties’s motion, indicating that it did not

object to a modified sentence within the revised Sentencing Guidelines range of

168 to 210 months’ imprisonment; the government objected to any sentence less

than 168 months’ imprisonment.

      On August 18, 2008, the district court held a resentencing hearing.

Petties’s counsel requested a sentence of 135 months’ imprisonment because

Petties “has been an absolute model prisoner.” R. Vol. III at 16. Without

addressing Petties’s argument or any response from the government, the district

court stated that the matter came “before the Court for sentencing pursuant to

motion by the defendant in accordance with 18 United States Code Section

3582(c)(2). . . . The Court . . . reviewed the [PSR] factual findings and . . .

considered the sentencing applications and the factors set forth in 18 United

States Code 3553(a)(1) through (7).” Id. at 17. The district court calculated

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Petties’s amended offense level to be 32, with a Sentencing Guidelines range of

168 to 210 months’ imprisonment. The district court then modified Petties’s

sentence by reducing his term of imprisonment to 168 months.

                                          II

      On appeal, Petties argues that the district court erred by assuming that it

lacked “the authority to impose a sentence that is less than the minimum of the

amended guideline range based on U.S.S.G. § 1B1.10(b)(2)(A), because the

sentencing hearing was pursuant to 18 U.S.C. § 3582(c)(2) . . . .” Aplt. Br. at 5.

Because the issue presented raises a question of law, we review de novo the scope

of a district court’s resentencing authority under § 3582(c)(2). United States v.

Rhodes, 549 F.3d 833, 837 (10th Cir. 2008), cert. denied, No. 08-8318, 2009 WL

178619, at *1 (Apr. 27, 2009).

      Petties argues that the district court improperly considered itself bound by

U.S.S.G. § 1B1.10, and consequently assumed it lacked authority to sentence him

to less than the minimum of the amended Sentencing Guidelines range. Petties

contends these assumptions contradict United States v. Booker, 543 U.S. 220

(2005). As Petties acknowledges, we rejected this argument in Rhodes. 549 F.3d

at 840 (“[W]e conclude that Booker simply has no bearing on sentencing

modification proceedings conducted under § 3582(c)(2).”). Although Petties

argues that “[t]he reasoning of Rhodes is flawed,” Aplt. Br. at 9, “this panel

cannot overturn the decision of another panel of this court barring en banc

                                          4
reconsideration, a superseding contrary Supreme Court decision, or authorization

of all currently active judges on the court.” United States v. Edward J., 224 F.3d

1216, 1220 (10th Cir. 2000) (quotation omitted).

      Petties also contends that this court erred in Rhodes by reading 18 U.S.C. §

3582(c)(2) and U.S.S.G. § 1B1.10 to limit the district court’s discretion when

resentencing a defendant under § 3582(c)(2). Section 3582(c)(2) provides:

      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 pursuant to 28 U.S.C. 994(o),
      upon motion of the defendant or the Director of the Bureau of
      Prisons, or on its own motion, 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.

18 U.S.C. § 3582(c)(2) (emphasis added). Section 1B1.10 of the U.S.S.G. sets

forth the applicable policy statements from the Sentencing Commission: “[T]he

court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.

3582(c)(2) and this policy statement to a term that is less than the minimum of the

amended guideline range . . . .” U.S.S.G. § 1B1.10(b)(2)(A). In Rhodes, we read

§ 1B1.10 to be binding on district courts, concluding that district courts “lack[]

the authority to impose a modified sentence that [falls] below the amended

guideline range.” 549 F.3d at 841. Therefore, a reduction in sentence below the

amended sentencing guidelines range at a § 3582 sentence modification

proceeding is impermissible because it would be inconsistent with the policy

                                          5
statement in § 1B1.10.

      Petties argues that this conclusion overlooks the Supreme Court’s

instruction that a policy statement from the Sentencing Commission cannot

violate a court’s statutory or constitutional sentencing obligations. Aplt. Br. at 10

(citing Stinson v. United States, 508 U.S. 36, 38 (1993)). Because the relevant

statute, 18 U.S.C. § 3582(c)(2), explicitly references the applicability of

Sentencing Commission policy statements, the policy statement does not violate

the controlling statute. The only constitutional rights Petties identifies are Sixth

Amendment rights defined in Booker. Rhodes, however, clarified that Booker is

not applicable to sentence modification proceedings held pursuant to §

3582(c)(2). 549 F.3d at 840. Thus, the relevant policy statement does not violate

any identified statutory or constitutional obligation.

                                          III

      We conclude that the district court properly resentenced Petties under 18

U.S.C. § 3582(c)(2) and denied his request for a sentence below the amended

guideline range.

      Affirmed.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge


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