                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 29, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v.                                        Nos. 09-3004, 09-3015, 09-3018,
                                                     09-3020 & 09-3021
    DAIMON T. PORTER; CHRIS                    (D.C. No. 2:03-CR-20003-CM)
    MOORE; CHARLES MURPHY;                                (D. Kan.)
    MONIQUE HORTON; FABIAN
    PERKINS,

               Defendants-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         Daimon T. Porter, Chris Moore, Charles Murphy, Monique Horton, and

Fabian Perkins appeal from orders of the district court denying their individual

motions for sentence reductions pursuant to 18 U.S.C. § 3582(c)(2). Because

defendants were co-defendants in the original district court case and because their


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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). These cases are
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
appeals raise the same issues, we will consider their appeals together. We affirm

the district court’s denial of defendants’ § 3582(c)(2) motions.

      Defendants are serving terms of imprisonment in federal prison for

distribution of cocaine base, also known as crack cocaine. Mr. Porter was held

responsible for 40.8 kilograms of crack cocaine and he was sentenced to

180 months in prison. Mr. Moore was held responsible for 35.7 kilograms of

crack cocaine and he was sentenced to 210 months in prison. Mr. Murphy was

held responsible for 20.4 kilograms of crack cocaine and he was sentenced to 105

months in prison. Ms. Horton was held responsible for 40.8 kilograms of crack

cocaine and she was sentenced to 324 months in prison. Mr. Perkins was held

responsible for 40.8 kilograms of crack cocaine and he was sentenced to 131

months in prison.

      Defendants all individually filed § 3582(c)(2) motions for a reduction in

sentence under guideline Amendment 706, which reset the crack cocaine

guidelines. At defendants’ initial sentencing, the base offense level for the

quantity of drugs attributable to each defendant was level 38. The new crack

cocaine quantity for a base offense level of 38 is 4.5 kilograms. Because all of

the defendants were held responsible for more than 4.5 kilograms of crack

cocaine, Amendment 706 did not have the effect of lowering their applicable

guideline range. The district court denied all of the motions, concluding that it




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lacked authority to modify defendants’ sentences because their base offense level

and guideline range remained the same. Defendants now appeal.

      Defendants are represented by the same Federal Public Defender and raise

the identical issues as the defendants in this court’s recently issued order and

judgment in United States v. Johnson, Nos. 09-3007, 09-3012, 09-3013, 09-3016,

2009 WL 1762161 (10th Cir. June 23, 2009) (unpublished). As in Johnson,

defendants here argue that the district court erred in denying their motions for a

reduction in sentence because treating U.S.S.G. § 1B1.10 1 as a jurisdictional limit

violates the Sixth Amendment and impermissibly invests the Sentencing

Commission with power to determine which cases the federal courts have

jurisdiction to consider. Like the defendants in Johnson, these defendants

acknowledge that this court has held in published decisions that crack cocaine

offenders are not eligible for retroactive reductions under Amendment 706 if that

amendment does not have the effect of changing their guideline range. But, as in

Johnson, these defendants assert that they are filing the instant appeal to preserve




1
      Section 1B1.10 is the applicable Sentencing Guidelines policy statement. It
provides that: “A reduction in the defendant’s term of imprisonment is not
consistent with this policy statement and therefore is not authorized under
18 U.S.C. [§] 3582(c)(2) if . . . [a]n amendment listed in subsection (c) does not
have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B) (emphasis added).


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their ability to benefit from Supreme Court review of the issues they have raised

because there is a circuit split on one of the issues.

      As we explained in Johnson, defendants’ arguments on the issues raised in

these appeals are foreclosed by United States v. Rhodes, 549 F.3d 833, 841

(10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (U.S. Apr. 27, 2009), United States

v. Pedraza, 550 F.3d 1218, 1220 (10th Cir. 2008), cert. denied, 2009 WL 811581

(U.S. May 18, 2009), and United States v. Dryden, 563 F.3d 1168, 1170-71

(10th Cir. 2009). Because there has been no intervening en banc decision in this

court or a superseding contrary decision by the Supreme Court, we are bound by

the precedent of prior panels. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)

(per curiam). Accordingly, the judgments of the district court are AFFIRMED.


                                                         Entered for the Court



                                                         Stephen H. Anderson
                                                         Circuit Judge




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