                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

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

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 08-3285
 v.                                                      (D. Kansas)
 SAMMY NICHOLS,                               (D.C. No. 2:03-CR-20149-KHV-1)

              Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, HOLLOWAY and GORSUCH, Circuit Judges.



      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). The case is

therefore ordered 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        This order and judgment is not binding precedent except under the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.
        Sammy Nichols challenges the district court’s order denying his motion for

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Because Mr. Nichols’s

advisory guideline range would not change with the retroactive application of the

Amendment 706, exercising our jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we affirm.

        In November 2004, Mr. Nichols pleaded guilty to an offense involving

cocaine base. The sentencing court found Mr. Nichols responsible for 22.7

kilograms of cocaine base and 129.7 kilograms of powder cocaine. The court

adopted the presentence report’s recommendations that calculated his base offense

level to be 38 which was the base offense level for cocaine base quantities of 1.5

kilograms or more under U.S.S.G. § 2D1.1(c)(1) (2004). The court sentenced him

to 360 months in September 2005, which it later reduced to 324 months in May

2008.

        Mr. Nichols filed a motion in the district court to modify his sentence

pursuant to the retroactive application of Amendment 706 of the Guidelines. 1

Reviewing the motion, the district court determined that Mr. Nichols’s base

offense level remained at 38, which was the base offense level for cocaine base


        1
        Amendment 706 to U.S.S.G. § 2D 1.1(c), which modified the Drug
Quantity Table downward two levels for crack cocaine, became effective
November 1, 2007 and retroactive as of March 3, 2008. See U.S.S.G. Supp. to
App’x C, Amend. 706 (Reason for Amend.); U.S.S.G. § 1B1.10(a) and (c);
Amends. 712 and 713 (Mar. 3, 2008 Supp.).


                                          -2-
quantities of 4.5 kilograms or more under U.S.S.G. § 2D1.1(c)(1) (2008). The

district court thus denied the motion.

      Before this court, Mr. Nichols appeals the district court’s refusal to also

consider his motion through the lens of 18 U.S.C. § 3553(a). He argues that the

United States Sentencing Commission’s recent 2008 revision to U.S.S.G. §

1B1.10(b) 2 violates United States v. Booker, 543 U.S. 220 (2005), by effectively

rendering the crack guidelines mandatory. He maintains that the district court

remained at liberty to reduce his sentence under § 3553(a)’s sentencing factors.

To constrain the district court otherwise, he argues, would be contrary to Booker,

543 U.S. at 245-46.

      We review de novo the district court’s scope of authority in a resentencing

proceeding under 18 U.S.C. § 3582(c)(2) as well as its interpretation of a statute

or the Guidelines. United States v. Rhodes, 549 F.3d 833, 837 (10th Cir. 2008),

cert. denied, ___S. Ct.___, 2009, WL 178619 (April 27, 2009); United States v.

Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008). We review the district court’s



      2
          U.S.S.G. § 1B1.10(a)(1), as amended effective May 1, 2008 provides:

      In a case in which a defendant is serving a term of imprisonment, and
      the guideline range applicable to that 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). As required by 18
      U.S.C. 3582(c)(2), any such reduction in the defendant’s term of
      imprisonment shall be consistent with this policy statement.

                                         -3-
decision to deny a reduction in sentence under § 3582(c)(2) for an abuse of

discretion. Sharkey, 543 F.3d at 1238. “When ‘a motion for [a] 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).’” Id. (quoting

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

      In Rhodes, we explained that Booker made the Guidelines advisory so

district courts, when conducting original sentencing proceedings, are no longer

bound by the sentencing ranges prescribed in the Guidelines. 549 F.3d at 839.

However, in considering whether the holding in Booker applied to a resentencing,

like Mr. Nichols’s, we held § 3582(c)(2) does not permit a full resentencing based

only on 18 U.S.C. § 3553 factors and objectives. Id. at 840. Section 3582(c) is

much more limited, authorizing “a district court to ‘reduce the term of

imprisonment’ only ‘if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.’” Id. (quoting 18 U.S.C. §

3582(c)(2)). Even before Rhodes, we held “that Booker does not provide a basis

for a sentence reduction under § 3582(c)” 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).

      Not only does Booker not authorize a variance during a § 3582(c)(2)

resentencing, but the United States Sentencing Commission has revised U.S.S.G.

                                         -4-
§ 1B1.10 so it expressly denies a district court’s authority to grant a downward

variance, stating “‘the court shall not reduce the defendant’s term of

imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is less than the

minimum of the amended guideline range determined under subdivision (1) of this

subsection.’” United States v. Pedraza, 550 F.3d 1218, 1221 (10th Cir. 2008)

(quoting U.S.S.G. § 1B1.10(b)(2)(A) (2008)). Arguably, because the district

court resentenced Mr. Nichols in July 2008, this revised guideline, effective

March 3, 2008, applies to him. However, even if it does not, we have held that

the prior version of § 1B1.10 also restricted a resentencing judge’s authority to

grant variances under § 3582(c). Id. at 1221-22 (relying on U.S.S.G. § 1B1.10(b)

& cmt. nn. 2-3 (2006)). Thus, under either version of that guideline, it is clear

the district court could consider only whether Mr. Nichols was entitled to a

reduction under Amendment 706 and not whether any other reduction of his

sentence was warranted under the § 3553(a) sentencing factors. It thus appears

that Mr. Nichols, having noted the circuit split we recognized in Rhodes, 549 F.3d

at 837, is preserving a foreclosed issue for possible en banc review or appeal to

the United States Supreme Court. 3


      3
         Before us, Mr. Nichols raises, for the first time, the related argument that
our treatment of § 1B1.10(a)(2)’s limitation of the district court’s authority
violates the non-delegation doctrine. Reviewing for plain error, we note that we
have rejected the identical argument and that there is no error here. See United
States v. Dryden, ___ F.3d ___, 2009 WL 1153690, at *3 (10th Cir. Apr. 30,
                                                                         (continued...)

                                          -5-
      The crux of Mr. Nichols’s arguments have been reviewed and rejected by

another panel of this court. We AFFIRM the district court’s order denying Mr.

Nichols’s motion filed pursuant to 18 U.S.C. § 3582(c)(2) for a downward

variance under 18 U.S.C. § 3553(a).

                                             Entered for the Court,



                                             Robert H. Henry
                                             Circuit Judge




      3
       (...continued)
2009) (“Because the language of USSG § 1B 1.10(a)(2) challenged by Mr.
Dryden as resulting from an unconstitutional delegation of Congressional
authority is merely a paraphrase of Congress’s own language, his delegation
argument fails.”).

                                       -6-
