                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  November 10, 2009
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 09-3024
                                                (D.C. No. 6:05-CR-10160-MLB)
    TRUONG T. NGUYEN,                                      (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         Truong T. Nguyen, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion, brought under 18 U.S.C. § 3582(c)(2), seeking

modification of his sentence based on Amendment 706 to the United States

Sentencing Guidelines. Exercising our jurisdiction under 28 U.S.C. § 1291, we

affirm.



*
       After examining the briefs and appellate record, this 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)(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judgment is not binding precedent, except under the doctrines of law of the case,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.
                                         I.

      In February 2006, Nguyen pled guilty to one count of distributing crack

cocaine in violation of 21 U.S.C. § 841(a)(1). This offense is subject to a

mandatory minimum sentence of 120 months imprisonment. Id. § 841(b)(1)(A).

According to the presentence investigation report prepared in Nguyen’s case, his

advisory guidelines sentence, were the mandatory minimum to be disregarded,

would be in the range of 108 to 135 months. Nguyen was sentenced, however, to

120 months.

      In November 2007, the United States Sentencing Commission promulgated

Amendment 706 to the guidelines, which, in coordination with two subsequent

amendments, retroactively reduced the base offense levels for crack

cocaine-related offenses. United States v. Rhodes, 549 F.3d 833, 835 (10th Cir.

2008), cert. denied, 129 S.Ct. 2052 (2009). In March 2008, Nguyen filed a pro se

motion under 18 U.S.C. § 3582(c)(2) asking the district court to lower his

sentence based on this amendment. The district court denied the motion,

however, concluding that Nguyen was ineligible for relief under Amendment 706

because he was sentenced to a statutorily prescribed mandatory minimum

sentence. The court also held that its previous determination that Nguyen did not

qualify for the “safety valve” provision set forth in 18 U.S.C. § 3553(f) precluded

relief under Amendment 706. See generally United States v. Altamirano-

Quintero, 511 F.3d 1087, 1090 (10th Cir. 2007) (discussing district court’s

                                         -2-
authority to depart from a mandatory minimum sentence under circumstances set

forth in § 3553(f)), cert. denied, 128 S.Ct. 2098 (2008). Nguyen renewed his

§ 3582(c)(2) motion in November 2008, and it is the district court’s summary

denial of his second motion that gave rise to this appeal.

                                         II.

      The district court effectively held that it lacked authority to grant Nguyen’s

motion in this case because any modification of his sentence under Amendment

706 would have run afoul of the mandatory minimum set forth in 21 U.S.C.

§ 841(b)(1)(A). The scope of the district court’s authority in these circumstances

is a question of law that we review de novo. Rhodes, 549 F.3d at 837 (holding

that the scope of district court’s authority to modify a sentence under 18 U.S.C.

§ 3582(c)(2) is a question of law reviewed de novo); see also United States v.

Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (“We . . . review de novo the district

court’s legal determination that it possessed jurisdiction to modify Defendant’s

sentence.”) (internal quotation marks omitted).

      Section 3582(c)(2) empowers a district court to modify a sentence if it was

“based on a sentencing range that has subsequently been lowered by the

Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2).

The Sentencing Commission does not have authority, however, to override a

statute that imposes a mandatory minimum term of imprisonment. Smartt,

129 F.3d at 542. Accordingly, in several recent unpublished decisions, we have

                                         -3-
held that Amendment 706 may not be used to modify a sentence imposed under a

mandatory minimum statute, as opposed to the guidelines. See, e.g., United

States v. Griego, No. 09-2029, 2009 WL 1598451, at *2 (10th Cir. June 9, 2009);

United States v. Dennis, 325 F. App’x 718, 723 (10th Cir. May 21, 2009); see

also Smartt, 129 F.3d at 542 (holding defendant ineligible for a sentence

reduction under § 3582(c)(2) because sentence was imposed pursuant to statute).

Nguyen seeks a different outcome in his case, arguing that he was sentenced

under the guidelines and is thus eligible for relief under Amendment 706. He

contends that the district court’s intent to sentence him under the guidelines, as

opposed to the mandatory minimum statute, is reflected in the judgment, which

indicates that he was sentenced under the Sentencing Reform Act of 1984

(“SRA”). He also contends that the Government expressly agreed to the

imposition of a guidelines sentence in his plea agreement. We reject these

arguments.

      First, we recently explained that, as a general proposition, “all federal

criminal sentences are imposed pursuant to the [SRA].” Griego, 2009 WL

1598451, at *2. As such, the judgment’s boiler-plate reference to the SRA is

meaningless in determining whether Nguyen’s sentence was based on the

mandatory minimum statute or the sentencing guidelines. Id. Nguyen’s reliance

on the plea agreement is likewise unavailing. That the Government requested

application of the guidelines and even agreed to a two-level reduction in exchange

                                         -4-
for Nguyen’s cooperation indicates only that it agreed not to press for a sentence

at the higher end of the advisory range.

      Nothing in the plea agreement indicates the Government agreed to any facts

that would have allowed the district court to disregard the mandate of 21 U.S.C.

§ 841(b)(1)(A). To the contrary, the agreement explicitly states that Nguyen had

yet to provide “substantial assistance” to the Government, which may have

prompted the Government to request a downward departure under U.S.S.G.

§ 5K1.1 and 18 U.S.C. § 3553(e). See Altamirano-Quintero, 511 F.3d at 1089-90

(explaining that such a motion enables the court to impose a sentence below the

mandatory minimum). Moreover, Nguyen does not, and based on our review of

the record likely could not, contest the district court’s finding that he is ineligible

for a safety valve sentence under U.S.S.G. § 5C1.2(a)(2) and 18 U.S.C.

§ 3553(f). 1 In short, the district court had no basis to disregard the mandatory

minimum sentence in this case, and nothing in the conviction record indicates it



1
       Under § 3553(f), a sentencing court must impose a guidelines sentence
without regard to any statutory minimum if a number of conditions are met, one
of which is that the defendant did not possess a firearm in connection with the
offense. In this case, a search of Nguyen’s apartment uncovered a semi-automatic
handgun with ammunition, which was found in a bedroom closet along with a
plastic bag containing powder cocaine, a scale, and some baggies. In light of this
evidence, and our previous holding that “[t]he mere propinquity of . . . weapons
and drugs suggests a connection between the two,” United States v. Payton, 405
F.3d 1168, 1171 (10th Cir. 2005), we would be hard pressed to upset the district
court’s findings under the safety valve provision, which, again, Nguyen has not
directly challenged.

                                           -5-
intended to do so. Therefore, it did not err in concluding that Nguyen was

ineligible for relief under Amendment 706.

                                        III.

      For these reasons, we AFFIRM the district court’s order denying Nguyen’s

motion for sentence modification under 18 U.S.C. § 3582(c)(2); in addition we

GRANT Nguyen’s motion for leave to proceed on appeal in forma pauperis.


                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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