                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 5, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-6053
          v.                                           (W.D. of Okla.)
 MYRON ANDRE WILLIAMS,                         (D.C. No. 5:00-CR-00025-R-8)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, SILER **, and TYMKOVICH, Circuit Judges.


      Myron Andre Williams, a federal prisoner, appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion for sentence modification. 1 This



      *
         This order and judgment is not binding precedent except under the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.
      **
          The Honorable Eugene E. Siler, United States Circuit Judge, Sixth
Circuit, sitting by designation.
      1
        Recently, the court has addressed a number of appeals relating to
Amendment 706 of the United States Sentencing Guidelines. This decision’s
reasoning and holding are consistent with our determinations in those other “crack
cases.” In particular, see: United States v. Bolden, No. 09-6066, --- WL --- (---);
United States v. Chatman, No. 09-6078, --- WL --- (---); United States v. Burris,
No. 09-6046, 2009 WL 4071833 (Nov. 25, 2009); and United States v. Hodge,
No. 09-6062, 2009 WL 4071832 (Nov. 25, 2009).
court has jurisdiction pursuant to 28 U.S.C. § 1291. We AFFIRM the decision of

the district court.

                                  I. Background

       Williams pleaded guilty to several drug-related offenses and was sentenced

to 235 months’ imprisonment. For sentencing purposes, the district court adopted

the presentence report’s finding that Williams was responsible for 10.16

kilograms of crack cocaine. Williams’s sentence was calculated in accordance

with the 1998 edition of the Sentencing Guidelines and reflected a total offense

level of 37 and a criminal history category of II.

       Amendment 706 to the Sentencing Guidelines, effective November 1, 2007,

reduced by two levels the base offense level associated with each enumerated

quantity of crack cocaine set forth in USSG § 2D1.1. See United States v.

Rhodes, 549 F.3d 833, 835 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009).

Subsequently, Amendment 706 was made retroactive. See id.

       In 2008, based on Amendment 706 and pursuant to § 3582(c)(2), Williams

filed a motion for sentence reduction. The district court denied the motion.

Because Williams was held responsible for more than 4.5 kilograms of crack

cocaine for sentencing purposes, he is not eligible to receive the offense level

reduction Amendment 706 provides, and the guideline range applicable to him

does not change. See USSG § 2D1.1(c)(1) & app. n.10(D)(ii)(I). Based on those

circumstances, and citing Rhodes for the proposition that United States v. Booker,

                                         -2-
543 U.S. 220 (2005), has no bearing on § 3582(c)(2) proceedings, the district

court refused to reduce Williams’s sentence.

                                   II. Discussion

      The district court’s determination of its authority to modify a sentence

under § 3582(c)(2) is reviewed de novo, see Rhodes, 549 F.3d at 837, as is the

district court’s interpretation of a statute or the Sentencing Guidelines, see United

States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008).

      A. Resentencing Under § 3582

      Our cases have uniformly held that resentencing is unavailable under

§ 3582 where the applicable guideline range has not been lowered. See United

States v. Dryden, 563 F.3d 1168, 1170S71 (10th Cir. 2009), cert. denied, 130 S.

Ct. 311 (2009); Rhodes, 549 F.3d at 838S41; Sharkey, 543 F.3d at 1238S39. In

particular, we have upheld the force of the Sentencing Commission’s policy

determination that a reduction is not “authorized under 18 U.S.C. 3582(c)(2)

if . . . [a]n amendment . . . does not have the effect of lowering the defendant’s

applicable guideline range.” See, e.g., Dryden, 563 F.3d at 1170S71 (discussing

USSG § 1B1.10). In this case, Amendment 706 did not reduce the sentencing

range available to Williams. He is not authorized to receive a sentence reduction.

      Nor do the discretionary provisions of Booker apply to § 3582(c)(2)

proceedings. We rejected that argument in Rhodes. See Rhodes, 549 F.3d at

840S41. In so holding, we stated:

                                         -3-
      [T]he Sixth Amendment concerns that gave rise to the Booker
      decision will not be replicated in sentence modification proceedings.
      Given the narrow scope of sentence modification proceedings, there
      is no concern that a district court in such a proceeding will make
      factual findings that in turn will raise a defendant’s sentence beyond
      the level justified by ‘the facts established by a plea of guilty or a
      jury verdict. . . .’ Indeed, a district court in a sentence modification
      proceeding is authorized only to ‘reduce the [originally imposed]
      term of imprisonment,’ not to increase it. As a result, we conclude
      that Booker simply has no bearing on sentencing modification
      proceedings conducted under § 3582(c)(2).

Rhodes, 549 F.3d at 840; see also United States v. Gaines, 2009 WL 3059067, at

*4 (10th Cir. Sept. 25, 2009) (“We have [] repeatedly rejected the notion that the

principles informing Booker have any role in a sentencing modification

proceeding under § 3582(c)(2).”); United States v. Harris, 2009 WL 2837529, at

*3 (10th Cir. Sept. 4, 2009) (“Kimbrough[ v. United States, 552 U.S. 85 (2007),]

does not provide a separate basis for relief under § 3582(c)(2).”); accord United

States v. Melvin, 556 F.3d 1190 (11th Cir. 2009) (“Concluding that Booker and

Kimbrough do not apply to § 3582(c)(2) proceedings, we hold that a district court

is bound by the limitations on its discretion imposed by § 3582(c)(2) and the

applicable policy statements by the Sentencing Commission.”), cert. denied, 129

S. Ct. 2382 (2009).

      Lastly, we have also held that the policy statement applicable to

§ 3582(c)(2) does not impermissibly vest the Sentencing Commission with the

power to determine which cases the federal courts have jurisdiction to consider.

See Dryden, 563 F.3d at 1170. Specifically, “[a] nondelegation argument has at

                                         -4-
least one fatal deficiency: [USSG] § 1B1.10(a)(2)[(B)] does no more than

reiterate a statutory limitation on resentencing. [Such an] argument challenges a

limitation created not by the Sentencing Commission under delegated authority,

but by Congress itself.” Dryden, 563 F.3d at 1170 (emphasis in original).

Accordingly, because § 1B1.10(a)(2)(B) clearly indicates that sentencing courts

shall not resentence where an amendment does not lower the applicable guideline

range, and because that policy statement is binding on district courts pursuant to

congressional authority as articulated in § 3582(c)(2), district courts lack the

authority to impose modified sentences unless the applicable guideline range is

reduced. See Rhodes, 549 F.3d at 841; see also United States v. Murphy, 578

F.3d 719, 720S21 (8th Cir. 2009) (“[T]he limitations in the applicable policy

statement . . . on a district court’s authority to reduce a sentence in a proceeding

under § 3582(c) are ‘constitutional and enforceable.’”), cert. denied, 2009 U.S.

LEXIS 8457 (Nov. 30, 2009).

      B. Application to Williams

      The district court did not err in denying Williams’s motion for sentence

reduction. First, as we noted above, § 3582(c)(2) and § 1B1.10(a)(2)(B) prohibit

district courts from resentencing unless an amendment reduces the applicable

guideline range. Second, we have repeatedly held that neither Booker,

Kimbrough, nor the Sixth Amendment afford district courts additional discretion

with respect to resentencing under § 3582(c)(2). Consequently, district courts

                                          -5-
cannot rely on those sources for authority to modify sentences in ways that

contravene § 3582(c)(2) and § 1B1.10(a)(2)(B). Finally, as we have expressly

ruled, § 1B1.10(a)(2)(B) does not impermissibly interfere with the jurisdiction of

the federal courts, because § 1B1.10(a)(2)(B) “does no more than reiterate a

statutory limitation on resentencing.” Dryden, 563 F.3d at 1170 (emphasis

removed). Thus, district courts cannot ignore the policy statement applicable to

§ 3582(c)(2) on non-delegation grounds and impose reduced terms of

imprisonment where an amendment does not reduce the applicable guideline

range.

         Williams suggests that our Rhodes decision, concerning the relationship

between § 3582(c)(2), § 1B1.10, and district courts’ resentencing authority, was

incorrectly decided. Williams maintains that the discretion Booker accorded

district courts in imposing original sentences applies to resentencings as well.

Williams also contends that this court’s decisions have not adequately taken into

account the Sentencing Reform Act’s legislative history or the differences

between guidelines and policy statements.

         We have previously noted that, while Booker excised statutory provisions

mandating that judges impose within-guidelines sentences in original sentencings,

it did not touch § 3582(c)(2) proceedings. See United States v. Pedraza, 550 F.3d

1218, 1220 (10th Cir. 2008), cert. denied, 129 S. Ct. 2406 (2009). “A

resentencing proceeding is an entirely different animal that does not implicate the

                                          -6-
Sixth Amendment concerns that drove the Booker remedy.” Id. Overturning our

prior precedent requires either an intervening en banc decision of this court or a

superseding contrary decision by the Supreme Court. See In re Smith, 10 F.3d

723, 724 (10th Cir. 1993). Williams does not identify, and our research does not

reveal, any decision that necessitates a break with our precedent. 2

      Williams’s reliance on legislative history is similarly misplaced.

“[L]egislative history is often murky, ambiguous, and contradictory, and [the

court] should resort to it only when a statute’s plain language is unclear.” Ford v.

Ford Motor Credit Corp., 574 F.3d 1279, 1293 (10th Cir. 2009) (internal

quotation marks and citation omitted). Section 3582(c)(2)’s language is not

ambiguous with regard to the limiting effect of policy statements. The statute

expressly states that a sentencing reduction is allowed, “if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Furthermore, the legislative history of the

Sentencing Reform Act that Williams cites does not discuss § 3582(c)(2), let

alone the specific language at issue. In short, the language of the statute is

unambiguous and reference to legislative history is unwarranted; Williams’s




      2
         The Supreme Court may provide guidance on this issue next year. See
Dillon v. United States, --- S. Ct. --- 2009 WL 2899562 (Dec. 7, 2009) (granting
certiorari).

                                         -7-
legislative-history argument does not support the conclusion that district courts

may resentence absent an amendment that lowers the applicable guideline range.

      Williams also points to United States v. Lee, 957 F.2d 770 (10th Cir. 1992),

and United States v. Tsosie, 376 F.3d 1210 (10th Cir. 2004), to support the

proposition that the policy statement applicable to § 3582(c)(2) proceedings

should be considered advisory, rather than mandatory. Both Lee and Tsosie

concerned the revocation of supervised release; they did not involve issues

relating to resentencing. 3 Both cases acknowledge that the policy statements of

Chapter 7 of the Sentencing Guidelines are advisory in nature.

      The Lee court, which provided a more detailed discussion of its ruling with

respect to the advisory/mandatory issue, based its determination that Chapter 7’s

policy statements were advisory on its review of the related statute. In reaching

its conclusion, the court in Lee noted that its holding was specifically limited to

Chapter 7 and that “[o]ther policy statements in the Sentencing Guidelines must

be examined separately in the context of their statutory basis and their

accompanying commentary.” Lee, 957 F.2d at 773. The Lee court also declared

that its ruling with regard to Chapter 7’s policy statements did not disturb its prior

holding that USSG § 5K1.1, another policy statement, was mandatory. See id.


      3
        In United States v. Tsosie, 376 F.3d 1210 (10th Cir. 2004), the court did
not alter the holding of United States v. Lee, 957 F.2d 770 (10th Cir. 1992), and
relied on the Lee court’s reasoning in reaching its conclusion. See Tsosie, 376
F.3d at 1218.

                                         -8-
      Contrary to Williams’s suggestion, Lee, and by extension Tsosie, do not

support finding § 1B1.10(a)(2)(B) merely advisory. Instead, those cases instruct

us to base our determination on an examination of the underlying statute,

§ 3582(c)(2). The language of § 3582(c)(2)—a sentencing reduction is allowed,

“if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission”—promotes the conclusion that § 1B1.10(a)(2)(B) is

mandatory and, therefore, that district courts cannot resentence where an

amendment does not reduce the applicable guideline range.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the ruling of the district court.

                                                    Entered for the Court,

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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