                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                                                                January 26, 2010
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       Nos. 09-6042
 v.                                            (D.C. No. 5:95-CR-00158-D-1)
                                                      (W. Dist. Okla.)
 JOHN R. TAYLOR,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.


      John R. Taylor appeals from the denial of his motion to reduce his sentence

under 18 U.S.C. § 3582(c)(2). The district court determined that although

amendments to the United States Sentencing Guidelines (U.S.S.G.) lowered

certain base offense levels for crack cocaine offenses, Mr. Taylor was not eligible

for resentencing because he was sentenced as a career offender. We dismiss the

      *
       After examining the briefs and 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); 10th Cir. R. 34.1(G). This 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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
appeal as untimely.

       Mr. Taylor was indicted and convicted of conspiracy to possess with intent

to distribute cocaine base in violation of 21 U.S.C. § 846 (Count I), and with

intent to distribute approximately 115 grams of crack cocaine in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count III). Because he was a career

offender, he received a sentence of 360 months on both counts, to be served

concurrently.

       Subsequently, the United States Sentencing Commission reduced the

offense level applicable to most crack cocaine offenses by two levels. See U.S.

Sentencing Guidelines Manual app. C, amend. 706 (Supp. May 1, 2008) (revising

crack cocaine guidelines); U.S. Sentencing Guidelines Manual app. C, amend. 713

(Supp. May 1, 2008) (making Amendment 706 retroactive). Mr. Taylor then

moved for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The

district court denied relief. On appeal, Mr. Taylor argues that although he was

sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, his sentence should

be reduced under § 3582(c)(2) based on retroactive application of Amendment

706.

       The government contends this appeal is untimely. In § 3582 proceedings,

the notice of appeal is due within 10 days of the entry of the judgment or order

appealed from. See Fed. R. App. P. 4(b)(1)(A). In this case, Mr. Taylor filed his

notice of appeal of the district court’s February 11, 2009 order on March 2, 2009.

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Although the prisoner mailbox rule deems an inmate’s notice of appeal timely “if

it is deposited in the institution’s internal mail system on or before the last day

for filing,” see Fed. R. App. P. 4(c)(1), Mr. Taylor’s notice of appeal did not

contain a certificate of mailing or any other information indicating compliance

with Rule 4(c), nor did he respond to the Government’s timeliness challenge.

Given the possibility that the notice could be considered timely under the mailbox

rule, we issued a show cause order providing Mr. Taylor with yet another

opportunity to demonstrate compliance with Fed. R. App. P. 4(c). He did not

respond. Accordingly, his appeal is time-barred. 1

      We DISMISS the appeal as untimely. Appellant’s motion to proceed in

forma pauperis is DENIED.

                                                Entered for the Court


                                                Stephanie K. Seymour
                                                Circuit Judge




      1
       In any event, Mr. Taylor’s sentence was not based on a sentencing range
that was subsequently lowered. As we held in United States v. Sharkey, 543 F.3d
1236, 1239 (10th Cir. 2008), “Amendment 706 ha[s] no effect on the career
offender guidelines in § 4B1.1,” and therefore a reduction in sentence is not
authorized under § 3582(c)(2). Because Mr. Taylor’s status as a career offender
determined his sentence, Amendment 706 did not lower his applicable guidelines
range.

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