                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 15, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-3171
          v.                                             D. Kansas
 SAMMY NICHOLS,                           (D.C. No. 2:03-CR-20149-KHV-DJW-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this court 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(G).

Accordingly, the case is ordered submitted without oral argument.

      In 2004, Appellant Sammy Nichols pleaded guilty to conspiracy to

distribute and possess with intent to distribute cocaine. At sentencing, the district

court found Nichols was responsible for 22.7 kilograms of cocaine base. After


      *
        This order and judgment is not binding precedent except under the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.
making additional findings relating to Nichols’s offense conduct, the court

determined his total offense level was forty-one, his criminal history category was

VI, and his advisory guidelines range was 360 months to life. The court imposed

a 360-month sentence.

      In 2012, Nichols filed a motion pursuant to 18 U.S.C. § 3582(c)(2) with the

district court. In his motion, Nichols argued his sentence should be modified

based on changes made to the United States Sentencing Guidelines by

Amendment 750. See United States v. Torres-Aquino, 334 F.3d 939, 940 (10th

Cir. 2003) (“Under 18 U.S.C. § 3582(c)(2), a court may reduce a previously

imposed sentence if the Sentencing Commission has lowered the applicable

sentencing range and ‘such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.’”). Amendment 750

retroactively “altered the drug-quantity tables in the Guidelines, increasing the

required quantity to be subject to each base offense level.” United States v.

Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012) (quotation omitted).

      The district court noted that Amendment 750 raised the minimum threshold

amount of cocaine base for an offense level of thirty-eight from 4.5 kilograms to

8.4 kilograms. See U.S.S.G. § 2D1.1(c)(1). Nichols’s conspiracy offense

involved 22.7 kilograms of cocaine base which, at the time of his sentencing,

corresponded to a base offense level of thirty-eight. Because Nichols’s offense

conduct involved more than 8.4 kilograms of cocaine base, his base offense level

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was not altered by Amendment 750. The district court, thus, concluded it did not

have authority under § 3582(c)(2) to grant Nichols the relief he sought because

Amendment 750 did not have the effect of lowering his applicable guidelines

range. See U.S.S.G. § 1B1.10(a)(2).

      Proceeding pro se, Nichols appeals the district court’s ruling that he is not

eligible for resentencing pursuant to 18 U.S.C. § 3582(c)(2). Having reviewed

the record, the appellate briefs, and the applicable law, we conclude the district

court did not err in concluding it lacked authority to grant Nichols’s § 3582(c)(2)

motion. Accordingly, the district court’s disposition of Nichols’s motion is

affirmed for substantially the reasons stated in the district court’s memorandum

and order dated June 20, 2012. Nichols’s request to file an untimely reply brief

and his motion to proceed in forma pauperis on appeal are both granted.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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