                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 25, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 09-6062
 v.                                              (D.C. No. 05-CR-00160-R-2)
                                                        (W.D. Okla.)
 LARRY EUGENE HODGE,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


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


      Defendant-Appellant Larry Eugene Hodge appeals from the denial of his

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court

determined that although amendments to the United States Sentencing Guidelines

(U.S.S.G.) lowered certain base offense levels for crack cocaine offenses, Mr.

      *
        This order and judgment is not binding precedent, except under the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, Senior Circuit Judge, United States
Court of Appeals for the Sixth Circuit, sitting by designation.
      ***
         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
Hodge was not eligible for resentencing because he was sentenced as a career

offender. 1 R. Doc. 82. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.



                                     Background

      On November 2, 2005, Mr. Hodge pled guilty to knowingly and

intentionally distributing approximately 23.2 grams of a mixture or substance

containing a detectable amount of cocaine base (crack) in violation of 21 U.S.C. §

841 (a)(1). 1 R. Doc. 46-47. Mr. Hodge was considered accountable for 74.9

grams of cocaine base, resulting in a base offense level of 32, pursuant to

U.S.S.G. § 2D1.1. 2 R. at ¶ 15. However, because Mr. Hodge had at least two

prior felony drug convictions, he qualified as a career offender under U.S.S.G. §

4B1.1, which resulted instead in a higher base offense level of 34. 2 R. at ¶ 20,

53. After an adjustment for acceptance of responsibility, Mr. Hodge’s total

offense level was 31. 2 R. at ¶¶ 21, 22. When combined with a criminal history

category of VI, mandated by U.S.S.G. § 4B1.1, Mr. Hodge’s guideline range was

188-235 months. 2 R. at ¶ 53. The district court sentenced Mr. Hodge to 188

months of imprisonment, the low end of the guidelines range, followed by four

years’ supervised release. 1 R. Doc. 61 at 2-3.

          Subsequently, the United States Sentencing Commission reduced the

offense level applicable to most crack cocaine offenses by two levels. See U.S.

                                         -2-
Sentencing Guidelines Manual app. C, amend. 706 (Supp. May 1, 2008) (revising

crack cocaine guidelines); U.S. Sentencing Guidelines Manual app. C, amend.

713 (Supp. May 1, 2008) (making Amendment 706 retroactive). Mr. Hodge then

moved for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). 1 R.

Doc. 76. The district court denied relief, 1 R. Doc. 82, and Mr. Hodge appeals, 1

R. Doc. 83.

      Mr. Hodge argues that although he was sentenced as a career offender, his

sentence should be reduced under § 3582(c)(2) based on retroactive application of

the crack cocaine amendments. Aplt. Br. at 7. Also, he contends that under

Booker and later cases, the district court must treat the Guidelines as advisory

upon resentencing under § 3582(c)(2). Aplt. Br. at 10.

      We review de novo the district court’s interpretation of a statute or the

sentencing guidelines. 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. Sharkey, 543 F.3d 1236, 1238 (10th Cir. 2008) (citation and quotation

marks omitted). Because this case is not a direct appeal or an appeal from the

denial of § 2255 relief, Mr. Hodge’s motion for reduction of sentence depends

only on § 3582(c)(2). See Sharkey, 543 F.3d at 1238. Section 3582(c)(2) permits

a court to reduce a sentence if the sentencing range has been lowered by the

Sentencing Commission.

      Mr. Hodge’s sentence, however, is not based on a sentencing range that has

                                        -3-
been lowered. As we held in Sharkey, “Amendment 706 ha[s] no effect on the

career offender guidelines in § 4B1.1” and therefore a reduction in sentence is not

authorized under § 3582(c)(2). Sharkey, 543 F.3d at 1239. Furthermore, Sharkey

rejected the argument that the Booker line of cases provides a separate basis for

relief under § 3582(c)(2). Sharkey, 543 F.3d at 1239; see also United States v.

Rhodes, 549 F.3d 833, 840 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009)

(concluding “that Booker simply has no bearing on sentencing modification

proceedings conducted under § 3582(c)(2)”).

         Despite acknowledging Sharkey and Rhodes, Mr. Hodge urges us to revisit

these cases. Aplt. Br. at 8-18. We, however, are bound by the precedent of prior

panels absent en banc reconsideration or a superseding contrary decision by the

Supreme Court. United States v. Mitchell, 518 F.3d 740, 752 n.14 (10th Cir.

2008).

         Similarly, this court already found without merit the argument that the

Sentencing Commission’s policy statements are not binding because they

represent an unconstitutional restriction on the jurisdiction of an Article III court.

United States v. Dryden, 563 F.3d 1168, 1171 (10th Cir. 2009); Aplt. Br. at 10.

The policy statements of § 1B1.10(a)(2) are “merely a paraphrase of Congress’s

own language” contained in 18 U.S.C. § 3582 limiting a sentence reduction to

cases in which a defendant’s sentencing range has been lowered by the

Sentencing Commission. Id.

                                          -4-
      Because Mr. Hodge’s status as a career offender determined his sentence,

Amendment 706 did not lower his applicable guidelines range. The district court

properly concluded that it lacked authority under § 3582(c)(2) to reduce Mr.

Hodge’s sentence.

      AFFIRMED.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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