                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS September 13, 2016

                         FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                     _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                    No. 16-2063
                                            (D.C. No. 2:10-CR-02603-WJ-1)
VERNON EARL COLEMAN,                               (D. New Mexico)

      Defendant - Appellant.

                     _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________


      Mr. Vernon Coleman was convicted of possessing marijuana with

intent to distribute. At sentencing, the district court applied the federal

sentencing guidelines, assessing Mr. Coleman’s criminal history at

Category VI and deducting three points for acceptance of responsibility.




*
     Oral argument would not materially aid our consideration of the
appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Invoking Guideline 4B1.1(b), the court imposed a sentence of 164

months’ imprisonment.

      After the district court imposed this sentence, the U.S. Sentencing

Commission amended the guidelines through a document known as

“Amendment 782.” Mr. Coleman moved for a sentence reduction based on

Amendment 782, but the district court dismissed the motion. Mr.

Coleman appeals, and we affirm.

      In his opening brief, Mr. Coleman asks what happened to his three-

point adjustment for acceptance of responsibility. Mr. Coleman cannot

collaterally attack the initial sentence even if the district court had erred

in failing to award the three points for adjustment of responsibility. See

United States v. Gay, 771 F.3d 681, 686 (10th Cir. 2014).

      But Mr. Coleman does not appear to collaterally challenge the

sentence based on the failure to award the three points. Instead, he

simply wonders what happened to those three points. Thus, the Court

will answer his question: The district court awarded Mr. Coleman three

points for acceptance of responsibility; but the court also found that Mr.

Coleman qualified as a career offender, which increased the base offense

level to 34. That increase offset the 3-point adjustment for acceptance of

responsibility.




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      In his reply brief, Mr. Coleman argues that his criminal history did

not justify placement in Category VI. This argument is invalid,

procedurally and substantively.

      The argument is invalid procedurally because it was omitted in Mr.

Coleman’s opening brief. Though Mr. Coleman is pro se, he must abide

by this court’s procedural rules. Ogden v. San Juan Cty., 32 F.3d 452,

455 (10th Cir. 1994). One such rule is that appellants must include all

arguments for reversal in their opening briefs. Fed. R. App. P. 28(a)(8).

Mr. Coleman’s failure to include this argument in his opening brief

constitutes a waiver of the argument. See United States v. Beckstead, 500

F.3d 1154, 1163 (10th Cir. 2007).

      The argument is also invalid substantively. Mr. Coleman was

treated as a career offender because he had two prior convictions for drug

trafficking. As a career offender, he was automatically put in Category

VI. U.S. Sentencing Guidelines Manual § 4B1.1(b) (U.S. Sentencing

Comm’n). In fact, this was never an issue in district court, for defense

counsel specifically acknowledged that Mr. Coleman belonged in

Category VI because of his criminal history. Def’s Sent. Mem. at 1-3,

United States v. Coleman, No. 2:10-cr-02603-WJ-1 (D. N.M. June 24,

2011), ECF No. 71.




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     Because Mr. Coleman’s arguments are invalid, the district court

correctly dismissed the motion for lack of jurisdiction. See United States

v. White, 765 F.3d 1240, 1250 (10th Cir. 2014).

     Affirmed.


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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