                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             NOV 16 2004
                                     TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No.04-6112
          v.                                          W. Dist. of Okla.
 RANDA SAFFO,                                      (D.C. No. CR-98-80-R)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.           **




      Randa Saffo appeals the denial of her motion to modify her sentence. Saffo

claims that the district court misinterpreted the United States Sentencing

Guidelines (USSG) and took too long to rule on her motion. Taking jurisdiction

pursuant to 28 U.S.C. § 1291 (2000), we find the district court did not err and

affirm.


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                       BACKGROUND

         On February 13, 1999, Saffo was convicted on eight counts of distribution

of pseudoephedrine,     1
                            three counts of structuring monetary transactions to avoid

reporting requirements, and thirteen counts of money laundering. In calculating

her base offense levels, the district court grouped all of the distribution counts

together, all of the structuring counts together, and all of the money laundering

counts together. This grouping resulted in base offense levels under the USSG of

30, 14, and 32, respectively. Because Application Note 5 to USSG § 1B1.1

requires a court to apply the highest base offense level when two or more

guideline provisions are applicable, the court set Saffo’s base offense level at 32.

The district court found no enhancements or reductions applied, and thus

sentenced Saffo to 121 months in prison, the lowest sentence in the level 32

range.

         This court affirmed her conviction in      United States v. Saffo , 227 F.3d 1260

(10th Cir. 2000). The Supreme Court denied Saffo’s petition for writ of certiorari

on April 16, 2001.




        Pseudoephedrine is a drug found in common over-the-counter medications
         1

such as Sudafed™ and is known to be used in the manufacture of the illegal drug
methamphetamine.

                                              -2-
      Saffo then filed the first in a series of motions to modify her sentence with

the district court. On May 12, 2003, in her first motion to modify her sentence,

Saffo asserted, among other arguments, that due to amendments to the USSG

subsequent to her conviction, she should be re-sentenced under USSG § 2D1.11

(pseudoephedrine convictions), and not as originally sentenced by the district

court under USSG § 2S1.1 (money laundering).     See 18 U.S.C. § 3582(c)(2)

(2000) ( “The court may not modify a term of imprisonment . . . except that – 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 [USSG] . . . .”);

USSG § 1B1.10 (“Where 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 [USSG], a reduction . . . is authorized under 18

U.S.C. § 3582(c)(2).”). The district court denied this motion on August 6, 2003

finding that no amendments to the USSG subsequent to Saffo’s conviction

affected her sentence.

      On October 21, 2003, Saffo filed a second motion to modify her sentence,

again invoking 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10. Saffo argued that the

court should reduce her sentence because the district court improperly grouped

her convictions according to quantity of drugs and money, as opposed to grouping

them by victim.   See USSG § 3D1.2(b) . Saffo asserted that the only victim of her


                                         -3-
crimes was “society.” Saffo went on to claim, without explanation, that her

money laundering convictions should thus be deemed incidental to her

pseudoephedrine convictions, and her sentence based solely on the

pseudoephedrine convictions, which carries a base offense level of 30, as opposed

to 32.

         Saffo next filed a “Motion to Advance Cause for Decision” on December

29, 2003, presumably because her October motion had not yet been ruled upon.

When Saffo had yet to receive a ruling, on March 15, 2004, she mailed a motion

to compel the court to rule on her October motion. Her motion crossed in the

mail with the court’s March 18, 2004 order denying her October motion. Saffo

now appeals the denial of her second motion to modify. In addition, for the first

time on appeal, Saffo asserts that the court failed to apply USSG § 5C1.2, which

allows a court to ignore statutory minimum sentences under certain circumstances,

and in this case would result in a two-level sentence reduction.

                                      ANALYSIS

         We review a court’s decision to deny a reduction in sentence under 18

U.S.C. § 3582(c)(2) for an abuse of discretion.    United States v. Dorrough , 84

F.3d 1309, 1311 (10th Cir. 1996). We review a court’s interpretation of the

USSG, rules of federal procedure, and other legal issues de novo.    United States




                                            -4-
v. Smartt , 129 F.3d 539, 540 (10th Cir. 1997);   United States v. Roman-Zarate ,

115 F.3d 778, 781 (10th Cir. 1997).

                                            I.

      The district court grouped Saffo’s convictions based on “the total amount

of harm or loss [or] the quantity of a substance involved.” USSG § 3D1.2(d).

Based on this grouping, the court determined the base offense level by using the

guideline for the highest offense conduct, which in this case was level 32 for the

money laundering convictions.     See USSG § 3D1.4 (instructing courts to

determine offense level “by taking the offense level applicable to the [g]roup with

the highest offense level”). Saffo argues that the district court should have

grouped her offenses based on the fact that they “involve[d] the same victim and

[were] connected by a common criminal objective,” USSG § 3D1.2(b), which

would lower her base offense level from 32 (money laundering) to 30

(distributing pseudoephedrine). Saffo bases her argument on Amendment 591           2
                                                                                        to

the USSG, effective November 1, 2000.




      2
        Amendment 591 states, in relevant part, “Section 1B1.1 is amended by
striking subsection (a) in its entirety and inserting: (a) Determine, pursuant to
§ 1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two
(Offense Conduct) applicable to the offense of conviction. See § 1B1.2.” USSG
Guidelines Manual, App. C, Vol. 2, p. 28. The Amendment was designed to
“emphasize that the sentencing court must apply the offense guideline referenced
in the Statutory Index for the statute of conviction . . . .” Id. at p. 31.

                                           -5-
      Prior to this amendment, the offense level for sentencing could be based on

the crime that was the main focus of the defendant’s conduct, as opposed to

simply the crime with the highest base offense level. For example, a person

convicted of money laundering, tax evasion, and fraud whose conduct centered

around selling fraudulent time shares could have a base offense level of six for

fraud as opposed to twenty for money laundering. Now, though, Amendment 591

requires courts to use the guideline to determine what base offense level applies

to each specific offense of conviction. Using the above example, then, the court

would assign a separate and specific base offense level to each separate

conviction of fraud, money laundering, and tax evasion. Then, applying USSG

§ 1B1.1 and Application Note 5, the court would determine the offense level

based on the crime with the highest base offense level.

      According to Saffo, however, her base offense level under this amendment

should not be determined by her money laundering convictions, which carry the

highest offense level out of all her convictions. To the contrary, Saffo argues that

because all of her crimes involved a common and singular victim, namely

“society” as a whole, her offenses should be grouped together, thus resulting in

her pseudoephedrine convictions dictating her base offense level, which in this

case would be 30.




                                         -6-
      Saffo’s argument fails for several reasons. First, Saffo’s argument is

exactly how a court could have determined her base offense level   before

Amendment 591. In fact, Saffo asks the court to do precisely that which it no

longer can: look at the main focus of her crimes, distributing pseudoephedrine,

and use that crime to determine the base offense level.

      Second, Saffo ignores Application Note 5 to USSG § 1B1.1, which requires

a court to “use the provision [of the USSG] that results in the greater offense

level” when “two or more guideline provisions appear equally applicable.” Here,

Saffo was convicted of three separate crimes for which three different provisions

of the USSG are applicable. Thus, the court was required to, and properly did,

apply the highest base offense level, which was level 32 for money laundering.

      Third, Application Note 2 to USSG § 3D1.2(d) clearly states that “[t]he

term ‘victim’ is not intended to include indirect or secondary victims.” Society is

not a victim for purposes of grouping.

      Finally, the court properly grouped her offenses by the amount of harm or

loss because Application Note 6 to USSG § 3D1.2(d) states that Subsection (d) is

to be used to group drug offenses together. Therefore, the court did not err in

grouping Saffo’s crimes according to amount of harm or loss and did not err in

establishing her offense level at 32 based upon her money laundering convictions.

                                          II.


                                          -7-
       Saffo also claims that she is entitled to a two-level reduction in her base

offense level pursuant to USSG § 5C1.2. Under USSG § 5C1.2, the “safety

valve” provision, a person convicted for a drug offense who (1) has a clean

criminal history, (2) did not use a firearm during the crime, (3) did not seriously

injure or kill anyone, (4) was not an organizer or leader, and (5) truthfully

provided all information requested by the government, is not subject to statutory

mandatory minimum sentences and their base offense level may be decreased two

levels. See USSG § 2D1.1(b)(6). Saffo’s claim dovetails from her argument in

Section I, supra . In essence, Saffo claims that the reduced base offense level to

which she asserts she is entitled (pseudoephedrine convictions) triggers USSG

§ 5C1.2. This argument also fails.

       First, Saffo waived this argument because she did not raise it in the district

court in any of her motions.   See Walker v. Mather (In re Walker)     , 959 F.2d 894,

896 (10th Cir. 1992) (the appellate court does not consider an issue a litigant

failed to raise in the district court). Second, this court rejected this argument

during Saffo’s direct appeal because she was not entitled to a USSG § 5C1.2

reduction since the district court sentenced her under USSG § 2D1.11 and

§ 2S1.1. Saffo , 227 F.3d at 1273. Thus, Saffo cannot re-litigate this issue.    See

Montana v. United States , 440 U.S. 147, 153 (1979). Finally, Saffo brought her

motion in the district court under 18 U.S.C. § 3582(c)(2), which allows a court to


                                            -8-
modify a sentence only if a person’s sentencing range “has subsequently been

lowered by the [USSG].” No amendment to the USSG has altered the fact, as

explained by the district court, that USSG § 5C1.2 does not apply to Saffo’s case.

See Saffo , 227 F.3d at 1273. Therefore, there is no basis upon which this court or

the district court could modify Saffo’s sentence.   See USSG § 1B1.10 (“Where

. . . the guideline range applicable to [a] defendant has subsequently been lowered

as a result of an amendment to the [USSG], a reduction . . . is authorized under 18

U.S.C. § 3582(c)(2).”).

                                            III.

       Saffo finally argues that her motion should have been granted because the

government did not file a brief in opposition to it and the court did not rule on her

motion for five months. We do not agree with Saffo that the court’s delay

violated Saffo’s due process rights, nor do we agree that the government’s failure

to file a brief in opposition to her motion concedes the motion.

        Saffo argues that her motion is one for summary judgment and is therefore

governed by the Federal Rules of Civil Procedure. As a result, Saffo argues, the

government’s failure to respond to her motion is a confession thereof, which

mandates a modification and reduction in her sentence. However, because Saffo

filed a motion to modify pursuant to 18 U.S.C. § 3582(c)(2), the motion is a

continuation of prior criminal proceedings governed by the Federal Rules of


                                            -9-
Criminal Procedure and is not one for summary judgment.       See United States v.

Espinosa-Talamantes , 319 F.3d 1245, 1246 (10th Cir. 2003) (docketing a § 3582

motion as a civil proceeding, but adopting other circuits’ logic that a

“§ 3582(c)(2) motion is a continuation of the prior criminal proceeding.”); Fed. R.

Crim. P. 1(a)(1). In addition, “[b]ecause it conclusively appeared from the record

and from . . . Saffo’s motion that she was not entitled to the relief sought,” the

district court did not order the government to file a response. March 25, 2004

Order, p.1. Thus, the government’s decision not to respond to Saffo’s motion was

neither a concession to nor admission of the motion.

      Saffo fails to cite any authority for her argument that the court’s delay in

denying her motion is a violation of her due process rights or should result in the

granting of her motion. We are not familiar with any authority that would apply

due process considerations to the facts at issue here. Saffo’s filing of two

subsequent pleadings asking the court to rule on her motion does not change this.

Therefore, the district court did not err in rejecting Saffo’s arguments and

subsequent pleadings asking the court to grant her motion as a result of delay and

the government’s failure to respond.

      WE AFFIRM.

                                                Entered for the Court

                                                Timothy M. Tymkovich
                                                Circuit Judge

                                         -10-
