                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-5108
 v.                                          (D.Ct. No. 4:93-CR-00001-HDC-1)
                                                        (N.D. Okla.)
 LAROAN F. VERNERS,

          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 Laroan F. Verners, a federal inmate, appeals the district court’s

denial of his request for a variance sought in conjunction with his motion under

      *
         This order and judgment is not binding precedent except under the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.
18 U.S.C. § 3582(c)(2) to modify his sentence based on the sentencing factors in

18 U.S.C. § 3553(a). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



                             I. Procedural Background

      In 1993, a jury convicted Mr. Verners of various offenses, including one

count of possession with intent to distribute cocaine base (crack) within one

thousand feet of a protected location, in violation of 18 U.S.C. § 2 and 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and 860(a). See United States v. Verners, 53 F.3d 291,

293 (10 th Cir. 1995) (Verners I). Mr. Verners appealed his convictions and we

reversed one drug-related offense and affirmed the others. Id. at 295 n.2, 298.

On remand, Mr. Verners received the same sentence as previously imposed and

this court affirmed his sentence on appeal. See United States v. Verners, 111 F.3d

140, 1997 WL 183510, at *2 (10 th Cir. Apr. 15, 1997) (unpublished op.) (Verners

II). Mr. Verners then filed a § 2255 motion raising several ineffective assistance

of counsel claims and arguing his firearms conviction must be vacated in light of

Bailey v. United States, 516 U.S. 137 (1995). See United States v. Verners, 182

F.3d 934, 1999 WL 332700, at *1 (10 th Cir. May 26, 1999) (unpublished op.)

(Verners III). The district court granted the § 2255 motion, in part, by vacating

his firearms conviction but rejected Mr. Verners’s ineffective assistance of

counsel claims. Id. It then ordered preparation of a revised presentence report to

use in resentencing Mr. Verners.

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      In the revised presentence report, the probation officer applied the 1997

United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) in determining

Mr. Verners’s possession with intent to distribute 4.108 kilograms of crack

cocaine within one thousand feet of a protected location warranted a base offense

level of 40. The probation officer then enhanced his base offense level two levels

for his possession of a firearm during the offense, pursuant to U.S.S.G.

§ 2D1.1(b)(1), for a total offense level of 42. Mr. Verners’s total offense level of

42, combined with his criminal history category of I, resulted in a Guidelines

range of 360 months to life imprisonment. The probation officer also noted the

maximum statutory term of imprisonment for possession with intent to distribute

cocaine base (crack) was ten years to life.



      After adopting the factual findings and Guidelines applications in the

revised presentence report, the district court sentenced Mr. Verners at the low end

of the sentencing range to 360 months imprisonment for the count of possession

with intent to distribute crack cocaine and imposed a concurrent sentence of 240

months for the remaining count of establishment of manufacturing operations in

violation of 21 U.S.C. § 856(a)(1). We affirmed Mr. Verners’s sentence on

appeal and denied his application for a certificate of appealability on his

ineffective assistance of counsel claims. See Verners III, 1999 WL 332700, at




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*6. 1



        On March 31, 2008, Mr. Verners filed the instant motion to modify his

sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 706 to U.S.S.G.

§ 2D1.1(c), which modified the Drug Quantity Table downward two levels for

crack cocaine and became effective November 1, 2007, and retroactive as of

March 3, 2008. See U.S.S.G. Supp. to App. C, Amend. 706 (Reason for Amend.);

U.S.S.G. § 1B1.10(a) and (c) (Nov. 1, 2007); Amends. 712 and 713 (Mar. 3, 2008

Supp.). In his motion, Mr. Verners also argued for a downward variance, based

on the sentencing factors in 18 U.S.C. § 3553(a), for a reduced sentence of 292

months imprisonment, and asserted the Supreme Court’s decisions in Kimbrough


        1
          Thereafter, Mr. Verners appealed various district court rulings to this
court. First, we affirmed the district court’s judgment ordering forfeiture of
currency by Mr. Verners. See United States v. $43,646.00, 182 F.3d 933, 1999
WL 360168, at **1-3 (10 th Cir. June 4, 1999) (unpublished op.). We also
remanded to the district court a matter involving Mr. Verners’s “Motion for
Tolling of Time to File § 2255” with instructions to dismiss, rather than deny, the
motion for lack of jurisdiction. See United States v. Verners, 15 F.App’x 657,
660 (10 th Cir. July 17, 2001) (unpublished op.) (Verners IV). Next, we denied his
application for authorization to file a second or successive § 2255 motion. See
United States v. Verners, 49 F.App’x 803 (10 th Cir. Oct. 17, 2002) (unpublished
op.) (Verners V). Finally, we affirmed the district court’s denial of Mr. Verners’s
motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on its
conclusion he did not qualify for a sentence reduction under Amendment 591
because it did not apply to defendants, like Mr. Verners, who were convicted of a
statutory violation of drug trafficking in a protected location. See United States v.
Verners, 136 F.App’x 142, 143-45 (10 th Cir. June 8, 2005) (unpublished op.)
(Verners VI).


                                         -4-
v. United States, ___ U.S. ___, 128 S. Ct. 558 (2007), and United States v.

Booker, 543 U.S. 220 (2005), supported such a reduction.



      After appointing counsel to represent Mr. Verners and receiving briefing

from the parties, the district court issued an order determining Mr. Verners’s total

offense level should be retroactively reduced from 42 to 40, pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 706, for an amended Guidelines range of 292 to 365

months imprisonment. See U.S.S.G. § 2D1.1(c)(1) (Drug Quantity Tbl.) (2007

ed.). It then granted Mr. Verners’s request for a reduction of sentence under

Amendment 706 and imposed a sentence of 292 months imprisonment on his

offense of possession with intent to distribute crack cocaine.



      However, the district court denied that portion of Mr. Verners’s § 3582

motion requesting a downward variance based on the § 3553(a) sentencing

factors, including the discrepancies between sentences for crack cocaine and

cocaine powder. In so doing, it discussed the merits of Mr. Verners’s argument

and explained, in part, that no “individualized factors” distinguished him “from

other similarly situated defendants.” It further explained sentencing decisions

must be grounded in case-specific considerations and not on a general

disagreement with broad-based policies pronounced by Congress and the

Sentencing Commission. During this discussion, it stated it could not

                                         -5-
“completely ignore the ratio differences between cocaine powder and crack

cocaine because the advisory guideline range, which remains relevant under

§ 3553(a) analysis, and the statutory minimum and mandatory sentences reflect

Congress’ preferred ratio.” R., Vol. 1, 7/15/08 Order at 2-3.



                                    II. Discussion

      Mr. Verners now appeals the district court’s dismissal of that portion of his

§ 3582 motion requesting a downward variance under 18 U.S.C. § 3553(a), basing

his argument on the decision in Kimbrough. In that case, the Supreme Court

explained the cocaine guidelines, which provide a recognized disparity between

cocaine base and powder, could not be applied mandatorily but are advisory and

subject to the particular circumstances of each case. See Kimbrough, 128 S. Ct. at

574-76. Mr. Verners claims his sentence is procedurally unreasonable due to the

district court’s alleged inaccurate statement of the law of that case.



      In Kimbrough, the issue regarding Guidelines sentencing disparities

between crack cocaine and cocaine powder was raised and addressed in the

original proceeding. See id. at 564-66. In contrast, in the instant appeal, Mr.

Verners’s argument for a variance is premised on § 3582(c)(2) in a modification

proceeding. Thus, under our prior precedent, Mr. Verners’s appeal must fail. In

United States v. Rhodes, we held § 3582(c)(2) does not permit resentencing based

                                          -6-
on 18 U.S.C. § 3553 factors and objectives, but is much more limited, authorizing

“a district court to reduce the term of imprisonment only if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.” 549 F.3d 833, 840 (10 th Cir. 2008). Similarly, in United States v.

Sharkey, this court rejected the same argument presented here that § 3582(c)(2)

authorizes a sentence reduction based on the 18 U.S.C. § 3553(a) factors and the

Supreme Court’s decision in Kimbrough. See 543 F.3d 1236, 1238-39 (10 th Cir.

2008). Even before Rhodes and Sharkey, this court held § 3582(c)(2) motions

may not be employed to present Booker-type claims, as “§ 3582(c)(2) only

expressly allows a reduction where the Sentencing Commission, not the Supreme

Court, has lowered the [sentencing] range.” United States v. Price, 438 F.3d

1005, 1007 & n.2 (10 th Cir. 2006). Thus, under § 3582, it is clear the district

court could consider only whether Mr. Verners was entitled to a two-level offense

reduction under Amendment 706 and not the merits of whether any other

reduction of his sentence was warranted under § 3553.



                                  III. Conclusion

      For these reasons, we AFFIRM on other grounds the district court’s order




                                         -7-
denying that portion of Mr. Verners’s motion filed pursuant to 18 U.S.C.

§ 3582(c)(2) for a downward variance under 18 U.S.C. § 3553(a).


                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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