                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 19, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 08-5113
                                                           (N.D. Okla.)
 TROY T. COLEMAN,                               (D.Ct. No. 4:89-CR-00090-HDC-3)

          Defendant - Appellant.
                         ____________________________

                              ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1. The case is therefore

ordered submitted without oral argument.

      Troy Coleman appeals from an 18 U.S.C. § 3582(c)(2) resentencing on a

crack cocaine offense. Because the issues he raises have been recently resolved

contrary to his position, we affirm.



      *
         This order and judgment is not binding precedent, except under the doctrines of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. BACKGROUND

         In 1990, Coleman was convicted of conspiracy and possession with intent

to distribute crack cocaine in violation of 18 U.S.C. §§ 846, 841(a)(1). The

Presentence Investigation Report (PSR) determined Coleman’s offense level was

38, which included a 2-level increase for possession of a firearm during the

commission of the offense. His Criminal History Category was V. The guideline

range was imprisonment for 360 months to life. The district court sentenced him

to 360 months. We affirmed. United States v. Coleman, 947 F.2d 1424 (10th Cir.

1991).

         In 2007, the United States Sentencing Commission amended the drug

quantity table in USSG §2D1.1(c) to reduce the sentencing disparity between

crack cocaine and powder cocaine. USSG App. C, Amend. 706 (2007). The

amendment reduced the base offense level for crack-cocaine-related offenses by

two levels. It was made retroactive. See United States v. Rhodes, 549 F.3d 833,

835 (10th Cir. 2008).

         Wishing to take advantage of the amendment’s retroactive effect, Coleman

petitioned the court for a sentence reduction, as permitted by 18 U.S.C.

§ 3582(c)(2). Under the amended guidelines his sentencing range was 292 to 365

months. He also requested a downward variance based on the continuing

disparity within the crack and powder cocaine sentencing guidelines (even after

Amendment 706) as recognized in Kimbrough v. United States, 128 S. Ct. 558

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(2007). The court reduced his sentence to 302 months, but denied his request for

a variance.

      Coleman now claims the district court erred, substantively by denying a

variance and procedurally by failing to sufficiently explain its denial.

                                  II. DISCUSSION

      Our discussion is brief because the issues presented have been resolved in

this circuit. “The scope of a district court’s authority in a resentencing

proceeding under § 3582(c)(2) is a question of law that we review de novo.”

Rhodes, 549 F.3d at 837. A district court is without authority to grant a variance

from the amended crack cocaine guidelines in sentence modification proceedings.

Id. at 841. Since the court had no authority to vary from the guidelines, its

reasons for refusing to do so are of no moment.

      In a brief submitted by counsel, Coleman relies on the holding of

Kimbrough, which recognized that in an original sentencing proceeding, the

sentencing guidelines relevant to crack cocaine offenses must be applied in an

advisory manner, subject to the particular circumstances of each case. 128 S. Ct.

at 574-76. Coleman asserts the district court’s denial of his request for a variance

at his resentencing was based on a misstatement of the law set forth by the

Supreme Court in Kimbrough. We need not critique the district court’s

Kimbrough analysis. It was without authority to grant a variance at resentencing,

whether based on Kimbrough or not.

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       In counsel’s brief, Coleman also argues a district court retains discretion to

vary below the amended guideline range at resentencing proceedings because

United States v. Booker, 543 U.S. 220 (2005), made the sentencing guidelines

advisory. This argument relies on the rationale set forth in United States v. Hicks,

472 F.3d 1167, 1170-71 (9th Cir. 2007). We specifically rejected this reasoning

in Rhodes because “modification proceedings under § 3582(c)(2) are much more

narrow in scope than original sentencing proceedings” and the statute’s plain

language only authorizes a reduction if it is consistent with applicable policy

statements issued by the Sentencing Commission. Rhodes, 549 F.3d at 840. The

applicable policy statements are contained in USSG §1B1.10 1 and limit the

court’s discretion – if it determines a reduction is warranted, it may only

resentence within the modified guideline range. Id.

       Finally, Coleman filed a pro se motion for leave to file a supplement brief

on December 22, 2008, which essentially included his arguments. He alleged the

district court erred by not revisiting its previously imposed sentence to correct

what he views as errors in the original guideline computations 2 and by not

completely recalculating his base offense level. He errs.


       1
         All references to the United States Sentencing Guidelines are to the 2008 version
unless otherwise stated.
       2
        Coleman’s attempt to get a second bite at the apple fails. He raised these issues
on his direct appeal and we upheld the district court’s computation of the offense level
and criminal history score. See Coleman, 947 F.2d at 1424.

                                            -4-
      With few exceptions a court may not modify an imposed term of

imprisonment. 18 U.S.C. § 3582(c). One exception arises under § 3582(c)(2)

which grants narrowly circumscribed authority to correct specific inequities the

Sentencing Commission has identified. It is not an invitation for a plenary

resentencing. A district court is only authorized to

      reduce the term of imprisonment . . . if such a reduction is consistent
      with applicable policy statements issued by the Sentencing
      Commission. The applicable policy statements issued by the
      Sentencing Commission are set forth in §1B1.10 and provide, in
      pertinent part, that proceedings under 18 U.S.C. § 3582(c)(2) do not
      constitute a full resentencing of the defendant, and that a district
      court, in determining whether, and to what extent, a reduction in
      sentence is warranted, shall substitute only the amendments listed in
      subsection (c) for the corresponding guideline provisions that were
      applied when the defendant was sentenced and shall leave all other
      guideline application decisions unaffected.

Rhodes, 549 F.3d at 840 (quotations and citations omitted).

      The district court is in no way obligated to reduce a sentence simply

because the Sentencing Commission amended the guidelines. Its decision

whether to reduce a sentence is discretionary and informed in part by the §

3553(a) factors. See United States v. Mueller, 27 F.3d 494, 497 n.5 (10th Cir.

1994) (“Under the provisions of 18 U.S.C. § 3582(c)(2), reduction is

discretionary, guided to the extent they are applicable by the factors contained in

18 U.S.C. § 3553(a).”) (citation omitted); see also 18 U.S.C. § 3582(c)(2) (“[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

                                         -5-
Commission . . . 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 . . .

.”) (emphasis added). In making a determination to reduce, the court must also

consider the risk to the public’s safety and may consider the defendant’s post-

sentencing conduct. See USSG §1B1.10, comment. (n.1(B)(ii)-(iii)). Exercising

its discretion, the district court determined a reduction of Coleman’s sentence was

warranted. The extent of any reduction is also discretionary.

      In deciding the extent of any reduction, a district court is required to

consider the § 3553(a) factors, the danger to the public’s safety posited by a

reduction and is allowed to consider Coleman’s post-sentencing conduct. See id.

The district court did so and detailed its reasons for imposing a mid-guideline

sentence (302 months). It specifically noted Coleman’s “criminal history includes

several crimes of violence . . . his conduct while imprisoned . . . includes several

violations, some carrying the potential of jeopardizing the safety of the institution

and others . . . .” (R. Vol. I, Doc. 200 at 2.)

      Because Coleman was resentenced within the amended guideline range, we

presume his sentence is reasonable. United States v. Kristl, 437 F.3d 1050, 1055

(10th Cir. 2006). A defendant may rebut this presumption by demonstrating the

sentence is unreasonable in light of the other § 3553(a) factors. Id. But Coleman

has failed to do so.

      As in all sentencing decisions, our substantive review is for an abuse of

                                           -6-
discretion. United States v. Angel-Guzman, 506 F.3d 1007, 1014-15 (10th Cir.

2007). We see no abuse of discretion and, accordingly, no substantive sentencing

error. Because the court provided a reasoned analysis of the relevant factors in

deciding to grant a reduction and the extent of such reduction, it committed no

procedural error.

      We have considered the arguments presented in Coleman’s pro se filings.

We deny his motion to file a supplemental brief as moot.

      AFFIRMED.

                                      Entered by the Court:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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