                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    April 10, 2009
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3315
 v.                                          (D.Ct. No. 5:04-CR-40007-SAC-1)
                                                          (D. Kan.)
 BOBBY FRANKLIN, JR.,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, 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.



      Appellant Bobby Franklin, Jr., a federal inmate, appeals the district court’s

denial of his motion brought pursuant to 18 U.S.C. § 3582(c)(2) for the purpose

      *
         This order and judgment is not binding precedent except under the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.
of modifying his sentence based on Amendment 706 to the United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.



                       I. Factual and Procedural Background

      On January 11, 2005, Mr. Franklin pled guilty to a one-count indictment

charging him with knowing possession with intent to distribute cocaine base

(crack), a schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C). After Mr. Franklin pled guilty, a federal probation officer prepared

a presentence report in conjunction with the 2004 Guidelines to determine his

recommended sentence. Based on Mr. Franklin’s possession of 138.49 grams of

cocaine base, the probation officer determined the base offense level for the crime

of possession with intent to distribute was 32, pursuant to U.S.S.G. § 2D1.1. See

U.S.S.G. § 2D1.1(c)(4) (Drug Quantity Tbl.) (2004) (providing for a base offense

level of 32 if the offense involved “[a]t least 50 G but less than 150 G of Cocaine

Base”). However, because Mr. Franklin was eighteen years or older at the time of

the commission of the instant offense and had prior convictions for a controlled

substance offense and a crime of violence, the probation officer classified Mr.

Franklin as a career offender under U.S.S.G. § 4B1.1(a) and (b)(C), which also

provided for an offense level of 32. After applying a three-level reduction for

acceptance of responsibility to the career offender offense level, the probation

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officer calculated Mr. Franklin’s total offense level at 29.



      With respect to Mr. Franklin’s criminal history computation, the probation

officer determined he had fourteen criminal history points, establishing a criminal

history category of VI. He also determined that because Mr. Franklin was a

Guidelines career offender under U.S.S.G. § 4B1.1(b), his career offender

criminal history category was also VI, which, together with his total offense level

of 29, resulted in a Guidelines range of 151 to 188 months imprisonment.



      Mr. Franklin filed objections to the presentence report, including an

objection to the determination he was a career offender. In so doing, he objected

to the application of § 4B1.1(b)(C) – not because he failed to meet the

requirements for career offender status defined therein – but based on his claim

that counting prior drug trafficking convictions had “a disparate impact on

minority defendants that is not justified by recidivism rates,” particularly with

regard to African-Americans, such as him. At sentencing, the district court

denied Mr. Franklin’s objection to the career offender enhancement, stating his

criminal history “disputes the defendant’s claim that the career offender provision

... overstates the likelihood of his recidivism.” In denying the objection, the

district court pointed out that: (1) at the age of twenty-nine, Mr. Franklin’s

criminal history score was fourteen; (2) by the age of nineteen, he had served

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nearly four years in state penal institutions in four different cases; (3) before the

age of twenty-three, he had three prior convictions for drug offenses, an

aggravated battery conviction, five convictions for driving with a suspended

license, two convictions for driving while a habitual violator, and two convictions

for obstructing official duty; and (4) after his sentence for the last conviction

expired December 18, 2001, he was arrested less than two years later for the

instant offense, and less than three months after his arrest, officers searched his

residence and found additional cocaine base and marijuana.



      The district court concluded by stating that regardless of “[w]hatever policy

arguments the defendant may have with the career offender provisions and their

general application to African-American offenders like himself, [his] criminal

history is undisputably characteristic of recidivism and shows a strong likelihood

of relapsing into criminal activities” and that “[t]he application of [the career

offender guideline] § 4B1.1 to the defendant is consistent with the letter and spirit

of that guideline provision.” It then sentenced Mr. Franklin at the bottom of the

Guidelines range to 151 months imprisonment. Mr. Franklin did not appeal his

conviction or sentence, including application of the career offender guideline.



      On July 15, 2008, Mr. Franklin filed a motion to reduce his sentence under

18 U.S.C. § 3582(c)(2), based on Amendment 706, which modified the Drug

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Quantity Table in U.S.S.G. § 2D1.1(c) downward two levels for crack cocaine

effective November 1, 2007. 1 He claimed he was eligible for a sentence reduction

under § 3582(c) because he was sentenced under § 2D1.1 and not the career

offender guideline, § 4B1.1. In addition, he raised an issue as to the validity of

the policy statement in U.S.S.G. § 1B1.10, which limits a sentencing court from

imposing a sentence below the amended Guidelines range if the retroactive

amendment “does not have the effect of lowering the defendant’s applicable

guideline range” and thereby prohibits sentence reductions when the career

offender enhancement is applied. See U.S.S.G. § 1B1.10(a)(2)(B) (2008). In

asserting its invalidity, he claimed it conflicted with § 3582(c), which allows a

sentence reduction if the Guidelines range changes.



      In denying Mr. Franklin’s motion, the district court explained it had applied

the career offender enhancement under U.S.S.G. § 4B1.1 in calculating his

Guidelines range, rather than § 2D1.1, which was revised by Amendment 706.

Relying on our decision in United States v. Sharkey, 543 F.3d 1236 (10th Cir.

2008), it explained that Amendment 706, lowering the sentencing range for crack

cocaine, did not apply to career offenders under § 4B1.1, which was not changed

by that amendment.

      1
        See U.S.S.G. Supp. to App’x C, Amend. 706 (Reason for Amend.);
U.S.S.G. Amends. 712 and 713 (Mar. 3, 2008 Supp.); U.S.S.G. § 1B1.10(a)(2)
(2008).

                                         -5-
                                   II. Discussion

      Mr. Franklin now appeals the denial of his motion for a reduction of his

sentence, claiming “[t]he district court erroneously denied [him] relief pursuant to

18 U.S.C. § 3582(c)(2).” In making this assertion, Mr. Franklin suggests the

district court should treat U.S.S.G. § 1B1.10 as advisory and therefore apply the

two-level enhancement previously sought. In so doing, he acknowledges that in

Sharkey and United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008), petition for

cert. filed (Jan. 21, 2009) (No. 08-8318), we upheld as binding on the district

courts the policy statement in § 1B1.10 prohibiting sentence reductions based on

an application of the career offender enhancement, but he claims our holding

violates the separation of powers doctrine because “Congress has delegated to the

Sentencing Commission the right to control the jurisdiction of Article III courts.”

See Rhodes, 549 F.3d at 841 (holding § 1B1.10 “is binding on district courts

pursuant to § 3582(c)(2)”); Sharkey, 543 F.3d at 1239 (stating Amendment 706

had no effect on the career offender guidelines in § 4B1.1, so that a reduction in

the defendant’s term of imprisonment was not consistent with the policy

statement in § 1B1.10).



      “‘We review de novo the district court’s interpretation of a statute or the

sentencing guidelines.’” United States v. Brown, 556 F.3d 1108, 1111 (10th Cir.

2009) (quoting United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997)). “We

                                         -6-
review for an abuse of discretion a district court’s decision to deny a reduction in

sentence under 18 U.S.C. § 3582(c)(2).” Id. (relying on United States v.

Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996)). The relevant part of § 3582, on

which Mr. Franklin relies in bringing his action, states:

      [I]n 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 Sentencing Commission pursuant to 28 U.S.C.
      [§] 994(o), ... the court may reduce the term of imprisonment, after
      considering the factors set forth in section 3553(a) to the extent that
      they are applicable, if such a reduction is consistent with applicable
      policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). As Mr. Franklin asserts, Amendment

706 modified the drug quantity thresholds in U.S.S.G. § 2D1.1(c) and the Drug

Quantity Table, thereby lowering the sentencing range, so that “[c]rack cocaine

offenses for quantities above and below the mandatory minimum threshold

quantities ... [were] adjusted downward by two levels.” U.S.S.G. Supp. to App’x

C, Amend. 706 (Reason for Amend.). However, Amendment 712, which was

promulgated by the Sentencing Commission and amended § 1B1.10, limits

reduction of a sentence by amendment by providing, in part: “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 ... an 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) (Nov. 1, 2008); see also U.S.S.G.

Amend. 712 (March 3, 2008 Supp.).

                                         -7-
      Applying these provisions to the circumstance presented, it is clear

retroactive application of a two-level reduction under Amendment 706 does not

apply here. As the district court explained, the offense level applied in

calculating Mr. Franklin’s sentence was not based on the quantity of crack

cocaine he possessed under § 2D1.1, which was revised by the applicable

amendments, but on his career offender status under § 4B1.1, to which

Amendment 706 does not apply. As a result, “a reduction” in Mr. Franklin’s term

of imprisonment is inconsistent with the policy statement in § 1B1.10 and

therefore is not authorized under 18 U.S.C. § 3582(c)(2).



      Nevertheless, Mr. Franklin argues, for the first time on appeal, that

U.S.S.G. § 1B1.10 violates the separation of powers doctrine because “Congress

has delegated to the Sentencing Commission the right to control the jurisdiction

of Article III courts.” Generally, we will not consider an issue raised for the first

time on appeal, see In re Walker, 959 F.2d 894, 896 (10th Cir. 1992), except, for

example, in extraordinary circumstances or when the newly raised issue is

primarily a legal one, which Mr. Franklin would arguably suggest is an exception

to apply here. See Shoels v. Klebold, 375 F.3d 1054, 1062 (10th Cir. 2004).

However, even if we consider the separation of powers issue presented, Mr.

Franklin’s argument must fail.




                                          -8-
      As the Supreme Court pointed out in United States v. Booker, the

Sentencing Commission “is an independent agency that exercises policymaking

authority delegated to it by Congress” and Congress’ delegation of authority to

that Commission to promulgate the Guidelines does not violate the separation of

powers principles or otherwise exceed Congress’ powers. See 543 U.S. 220, 242-

43 (2005). More specifically, after severing and excising 18 U.S.C.

§§ 3553(b)(1) and 3742(e) of the Sentencing Act, the Booker Court determined

“[t]he remainder of the Act satisfies the Court’s constitutional requirements,”

which the Court listed as being: “(1) constitutionally valid, (2) capable of

functioning independently, and (3) consistent with Congress’ basic objectives in

enacting the statute.” Id. at 258-59 (internal quotation marks and citations

omitted); see also United States v. Starks, 551 F.3d 839, 842 (8th Cir. 2009).

Obviously, the remainder of the Sentencing Act to which the Court referred

includes § 3582(c), and, as the Eighth Circuit explained, “[n]either the Sixth

Amendment nor Booker prevents Congress from incorporating a guideline

provision as a means of defining and limiting a district court’s authority to

reduce a sentence under § 3582(c).” Starks, 551 F.3d at 842 (emphasis added).

In United States v. Price, we pointed out “a district court is authorized to modify

a defendant’s sentence only in specified instances where Congress has expressly

granted the court jurisdiction to do so.” 438 F.3d 1005, 1007 (10th Cir. 2006)

(internal quotation marks and citation omitted). We also explained that by the

                                         -9-
very terms of § 3582(c)(2), “the court only has authority to modify a sentence

when the range has been lowered ‘by the Sentencing Commission pursuant to 28

U.S.C. § 994(o).’” Id. at 1006-07 (quoting § 3582(c)(2)). Applying these

principles, it is clear § 1B1.10(a)(2)(B) defines and limits a district court’s

authority to reduce a sentence under § 3582(c) and, in this case, it had the effect

of limiting the district court from reducing Mr. Franklin’s term of imprisonment

because he is a career offender. For these reasons, even if we consider his newly

raised claim, Mr. Franklin cannot prevail on his separation of powers argument.



                                   III. Conclusion

      We AFFIRM the district court’s order denying Mr. Franklin’s motion filed

pursuant to 18 U.S.C. § 3582(c)(2).



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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