                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   August 15, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 08-5014
          v.                                             (N.D. of Okla.)
 STEVEN LEVANDER WILLIAMS,                      (D.C. No. CR-97-109-002-HDC)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Steven L. Williams appeals the denial of his motion to modify his sentence.

Proceeding pro se, 1 he claims the district court abused its discretion for the

following reasons: (1) the district court erroneously concluded a recent

amendment to the United States Sentencing Guidelines (USSG) did not authorize

      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
      1
        Because Williams proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
the court to modify Williams’s sentence, (2) the district court failed to evaluate

whether certain findings made by the original sentencing court were erroneous,

and (3) Williams’s sentence violates United States v. Booker, 543 U.S. 220

(2005), and Kimbrough v. United States, 128 S. Ct. 558 (2007).

       Having jurisdiction pursuant to 28 U.S.C. § 1291 and finding no error, we

AFFIRM the district court’s order.

                                I. BACKGROUND

      Sentencing

      In 1997, Williams pleaded guilty to (1) conspiracy to possess with intent to

distribute crack cocaine, and (2) possession with intent to distribute crack

cocaine. Prior to sentencing, the probation office prepared a presentence

investigation report (PSR). The PSR explained “[d]uring the twelve month period

ending August 1997, Steve Williams obtained, possessed with intent to distribute

or distributed not less than eighteen ounces of [crack cocaine] per month, for a

total of 216 ounces or 6.123 kilograms.” PSR at 6, ¶ 12. Based on this quantity

of drugs, the PSR recommended a base offense level of 38. See id. at 7, ¶ 18

(applying USSG § 2D1.1(c)(1) (1997)).

      The PSR also recommended no enhancements to the base offense level and

a three-level reduction for acceptance of responsibility. Because Williams’s total




                                         -2-
offense level was 35 and he had a category III criminal history, the PSR

calculated a Guidelines range of 210 to 262 months for each count.

      Williams objected to the amount of cocaine the PSR attributed to him. The

probation office responded with an addendum setting forth the proof supporting

the PSR’s conclusion. In February 1998, the sentencing court adopted the PSR’s

factual findings and Guidelines recommendations. The court then sentenced

Williams to a term of 210 months imprisonment for each count, with the two

terms running concurrently. Williams did not appeal his conviction or sentence.

      Motion for Reduction of Sentence

      Ten years later, Williams filed a motion under 18 U.S.C. § 3582(c)(2) for

the modification of his sentence. He argued he was eligible for a reduced

sentence pursuant to Amendment 706 2 of the Guidelines, which applies

retroactively to sentences involving crack cocaine. 3 The district court denied

Williams’s motion, and this timely appeal follows.

                                II. DISCUSSION

      We 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). United States v. Dorrough,

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


      2
          See USSG App. C. Supplement, Amendment 706 (Nov. 1, 2007).
      3
          See USSG App. C. Supplement, Amendment 713 (Mar. 3, 2008).

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Guidelines and other legal issues de novo. United States v. Smartt, 129 F.3d 539,

540 (10th Cir. 1997).

A.    Application of Amendment 706

      Williams first argues the district court abused its discretion because it

concluded USSG Amendment 706 does not authorize the court to reduce his

sentence.

      According to 18 U.S.C. § 3582(c)(2), a “court may not modify a term of

imprisonment once it has been imposed except . . . 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 Sentencing Commission . . . .” Williams

claims the Sentencing Commission retroactively reduced the sentencing range for

his offense involving crack cocaine when it passed Amendment 706. As his

argument goes, he is therefore eligible for a reduced sentence under § 3582(c)(2).

      Contrary to Williams’s assertion, however, Amendment 706 does not

authorize a reduction in his sentence. Amendment 706, which is retroactive to

previously imposed sentences, 4 modified the drug quantity thresholds in the Drug

Quantity Table of USSG § 2D1.1(c). When Williams was originally sentenced,

the Table indicated that a defendant responsible for 1.5 kilograms or more of

crack cocaine received a base offense level of 38. See USSG § 2D1.1(c)(1)


      4
          See USSG App. C. Supplement, Amendment 713 (Mar. 3, 2008).

                                         -4-
(1997). Now, under Amendment 706, a defendant responsible for 4.5 kilograms

or more of crack cocaine receives a base offense level of 38. See USSG App. C.

Supplement, Amendment 706 (Nov. 1, 2007). Because the original sentencing

court concluded Williams was responsible for 6.123 kilograms of crack cocaine,

Amendment 706 does not alter Williams’s base offense level; his base offense

level remains at 38. Therefore, this amendment does not authorize a court to

reduce Williams’s sentence.

      Because Williams is not eligible for a reduced sentence, we conclude the

district court did not abuse its discretion in denying his § 3582(c)(2) motion.

B.    Challenge to Drug Quantity

      Williams nonetheless argues that he is eligible for a reduction in his

sentence because the sentencing court erred in finding he was responsible for

6.123 kilograms of crack cocaine.

      As a threshold matter, Williams failed to raise this argument when he filed

his § 3582(c)(2) motion in district court, 5 and therefore we review this issue only

for plain error. See United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.

2006); Fed. R. Crim. P. 52(b).




      5
        Williams also failed to file a direct appeal challenging the sentencing
court’s findings.

                                         -5-
      Here, we see no error, plain or otherwise, because Williams cannot use

§ 3582(c)(2) to collaterally attack his sentence. See Smartt, 129 F.3d at 542–43

(holding district court does not have jurisdiction under § 3582 to consider

collateral sentencing issues). A collateral attack “complain[s] about the substance

of, or proceedings that determined, a defendant’s original sentence or conviction.”

United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003). In

contrast, § 3582(c)(2) only gives district courts the authority “to modify a

sentence based on events occurring after the original sentence was imposed.” Id.

(emphasis added); see also United States v. Torres-Aquino, 334 F.3d 939, 941

(10th Cir. 2003) (describing the difference between a § 3582(c)(2) motion and a

collateral attack). By challenging the quantity of drugs calculated by the

sentencing court, Williams is attempting to use his § 3582(c)(2) motion as a

vehicle to challenge the substance of, or the proceedings that determined, his

original sentence.

      Because the district court lacks jurisdiction under § 3582(c)(2) to consider

this collateral attack, we conclude the district court did not err in denying

Williams’s § 3582(c)(2) motion.




                                          -6-
C.    Booker and Kimbrough

      Williams also argues the district court’s denial of his § 3582(c)(2) motion

violates United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United

States, 128 S. Ct. 558 (2007).

      We rejected a similar argument in United States v. Price, 438 F.3d 1005

(10th Cir. 2006). As we explained, “even if Booker could be read to be an

implicit lowering of [a defendant’s] sentencing range, § 3582(c)(2) only expressly

allows a reduction where the Sentencing Commission, not the Supreme Court, has

lowered the range. We therefore agree with the district court that Booker does

not provide a basis for a sentence reduction under § 3582(c).” Id. at 1007. The

Sentencing Commission has not lowered the range that applies to Williams

sentence. Thus, because Booker—and by extension Kimbrough—does not provide

a basis for a sentence reduction under § 3582(c)(2), we conclude the district court

did not abuse its discretion by denying Williams’s motion.

                                 III. CONCLUSION

      For the reasons set forth above, we AFFIRM the district court’s order

denying Williams’s motion for modification of his sentence. We DENY

Williams’s motion for extension of time to file an untimely reply brief.

                                 Entered for the Court,

                                 Timothy M. Tymkovich
                                 United States Circuit Judge

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