                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       February 8, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                              Nos. 12-1075, 12-1244 & 12-1270
                                                (D.C. No. 1:91-CR-00188-LTB-4)
ANTHONY WALTER SMITH,                                       (D. Colo.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Pro se inmate Anthony Walter Smith appeals from the district court’s denial of

his 18 U.S.C. § 3582(c)(2) sentence-reduction motion, his motion for reconsideration,

and his petitions to vacate the denial of reconsideration. Exercising jurisdiction

under 28 U.S.C. § 1291, we dismiss appeal No. 12-1244 as moot, and we affirm in

Nos. 12-1075 and 12-1270.


*
      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(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    BACKGROUND

      In 1992, Smith was convicted on twenty-eight counts arising from a criminal

enterprise distributing crack cocaine. In sentencing Smith to life imprisonment, the

district court attributed 5.6 kilograms of crack cocaine to Smith and calculated an

offense level of 43 with a category-II criminal history.

      In November 2011, Smith filed a pro se § 3582(c)(2) petition, apparently

attempting to take advantage of Amendments 750 and 759 to the United States

Sentencing Guidelines. Those amendments retroactively “altered the drug-quantity

tables in the Guidelines, increasing the required quantity to be subject to each base

offense level in a manner proportionate to the statutory change to the mandatory

minimums [in] the [Fair Sentencing Act of 2010].” United States v. Osborn,

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

      The probation department reported that although 5.6 kilograms of crack

cocaine now resulted in an offense level of only 36, Smith was still subject to a

2-level enhancement for obstruction of justice, a 2-level enhancement for firearm

possession, and 4 more levels for a continuing-criminal-enterprise conviction. The

resulting offense level of 44 was then reduced to 43, which is the highest permissible

offense level in the sentencing table. Consequently, Smith’s guideline range

remained life imprisonment.

      On February 9, 2012, the district court denied Smith’s § 3582(c)(2) motion,

noting that his guideline range remained the same. On February 20, Smith invoked


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the “prison mailbox rule” and filed a motion for reconsideration. See Price v.

Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005) (providing that “an inmate who places

a [pleading] in the prison’s internal mail system will be treated as having ‘filed’ that

[pleading] on the date it is given to prison authorities for mailing to the court”). On

March 1, Smith appealed from the denial of § 3582(c)(2) relief. This court docketed

the appeal under No. 12-1075. The government moved to dismiss, arguing that the

appeal was untimely.

      On April 26, the district court summarily denied Smith’s motion for

reconsideration. In response, Smith filed a “Petition to Vacate” the denial of

reconsideration, stating that he did not receive the government’s response to his

motion for reconsideration, and thus, was unable to file a reply. Supp. R., Vol. I at 4.

On May 8, Smith filed an amended notice of appeal. That appeal was incorporated

into No. 12-1075.

      On May 14, the district court denied the petition to vacate, stating that the

government’s response had been mailed to Smith. The government subsequently

admitted, however, that it had mailed its response to Smith’s former attorney, and

that it had no objection to allowing Smith to file a reply. Smith appealed the denial

of his petition. That appeal was also incorporated into No. 12-1075.

      On June 1, Smith filed a “Renewed Petition to Vacate” the district court’s

April 26 order, which had denied Smith’s motion for reconsideration of § 3582(c)(2)

relief. Id., Vol. V at 4. Smith repeated that he was unable to file a reply in support


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of reconsideration. The district court summarily denied the renewed petition, and

Smith appealed. That appeal was docketed as No. 12-1270.

                                        DISCUSSION

                                 I. Appellate Jurisdiction

       The government contends that this court lacks jurisdiction in 12-1075 to

review the district court’s order denying § 3582(c)(2) relief. It points out that

Smith’s March 1, 2012 notice of appeal was filed more than fourteen days after the

February 9 order denying relief. See Fed. R. App. P. 4(b)(1)(A)(i) (requiring in

criminal cases that the notice of appeal be filed within fourteen days after entry of the

challenged order). And the notice was not accompanied by a declaration or notarized

statement invoking the prison mailbox rule. See Fed. R. App. P. 4(c)(1) (“If an

inmate confined in an institution files a notice of appeal in either a civil or a criminal

case, the notice is timely if it is deposited in the institution’s internal mail system on

or before the last day for filing.”).

       But Smith tolled the time for appealing by seeking reconsideration within

fourteen days of the order’s entry. See United States v. Randall, 666 F.3d 1238, 1243

(10th Cir. 2011) (holding that a motion for reconsideration in a criminal case must be

filed within the fourteen-day period prescribed for filing a notice of appeal); United

States v. Jackson, 950 F.2d 633, 636 (10th Cir. 1991) (observing that a motion to

reconsider filed in a criminal case tolls the time for appealing). The government




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mistakenly suggests that the tolling effect of a reconsideration motion depends upon

the merits of that motion. See United States v. Ibarra, 502 U.S. 1, 6-7 (1991).

      After reconsideration was denied, Smith timely filed an amended notice of

appeal, designating, it appears, both the original denial of § 3582(c)(2) relief and the

denial of reconsideration. See Smith v. Barry, 502 U.S. 244, 248 (1992) (directing

that courts “liberally construe the requirements of [Fed. R. App. P. 3],” which include

designating the judgment or order being appealed); United States v. Dieter, 429 U.S.

6, 8–9 (1976) (indicating that the time to appeal begins to run anew following

disposition of a reconsideration motion).

      Thus, we have jurisdiction to review the denial of § 3582(c)(2) relief in appeal

No. 12-1075.1

                              II. 18 U.S.C. § 3582(c)(2)

      “We review both the denial of a § 3582(c)(2) motion and the denial of a

motion for reconsideration for abuse of discretion.” Randall, 666 F.3d at 1243 n.6.

Section 3582(c)(2) provides that “in 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 Commission[,] . . . the court may reduce the term of

imprisonment, after considering the factors set forth in section 3553(a) to the extent


1
       Related appeal No. 12-1244 involves the district court’s denial of a motion
Smith filed in an attempt to prove that his first notice of appeal was timely. Because
we conclude that Smith’s amended notice of appeal timely perfected an appeal, we
will dismiss No. 12-1244 as moot.

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they are applicable, if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added).

“The Sentencing Commission’s policy statement at Guideline § 1B1.10(a)(2)(B)

states that a reduction is not consistent with this policy statement and therefore is not

authorized under 18 U.S.C. 3582(c)(2) if the reduction does not have the effect of

lowering the defendant’s applicable guideline range.” United States v. Sharkey,

543 F.3d 1236, 1239 (10th Cir. 2008) (quotations omitted).

      Here, Smith’s guideline range was unaffected by the crack-cocaine

amendments. Smith does not refute this point. Instead, he argues that the district

court did not consider his “individualized and case specific circumstance.” Aplt.

Opening Br. at 13. And he appears to claim that resentencing is warranted due to an

invalid continuing-criminal-enterprise conviction and an inapplicable

firearm-possession enhancement. But § 3582(c)(2) “authorize[s] only a limited

adjustment to an otherwise final sentence and not a plenary resentencing

proceeding.” Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). Indeed, “[t]he

relevant policy statement instructs that a court proceeding under § 3582(c)(2) ‘shall

substitute’ the amended Guidelines range for the initial range ‘and shall leave all

other guideline application decisions unaffected.’” Id. at 2694 (quoting U.S.S.G.

§ 1B1.10(b)(1)). Because Smith seeks to correct aspects of his sentence that were not

affected by the crack-cocaine amendments, “they are outside the scope of the

proceeding authorized by § 3582(c)(2).” Id.


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       Finally, Smith’s reliance on United States v. Miller, No. 4:89-CR-120 (JMR),

2010 WL 3119768 (D. Minn. Aug. 6, 2010), is misplaced. There, on a § 3582(c)(2)

motion, the district court rejected the defendant’s statutory life-imprisonment

sentence as a career offender to utilize a more favorable revised guideline sentence.

We fail to see Miller’s relevance to Smith’s sentence, as the district court here

calculated Smith’s revised guideline range based on the crack-cocaine amendments.

But that calculation again yielded a life sentence.

       Because the reduction to Smith’s offense level created by the crack-cocaine

amendments did not lower Smith’s applicable guideline range, we conclude that the

district court properly denied Smith’s motions for a § 3582(c)(2) sentence reduction

and for reconsideration.

                                 III. Petitions to Vacate

       Smith challenges the district court’s denial of his petition and renewed petition

to vacate the order denying reconsideration. He complains that he was not permitted

to file a reply in support of reconsideration. But he has not identified any meritorious

legal argument that could have been included in a reply brief. Thus, any error in

being denied the opportunity to reply to the government’s response was harmless.

See United States v. Montgomery, 439 F.3d 1260, 1263 (10th Cir. 2006) (“Harmless

error is that which did not affect the district court’s selection of the sentence

imposed.” (quotations omitted)).




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      Moreover, the renewed petition to vacate the denial of reconsideration was not

timely filed. The renewed petition was essentially nothing more than a motion for

reconsideration of the district court’s May 14 order denying the first petition to

vacate. But Smith did not file the renewed petition within fourteen days of May 14.

See Randall, 666 F.3d at 1243 (holding that a motion for reconsideration in a

criminal case must be filed within the fourteen-day period prescribed for filing a

notice of appeal).

                                     CONCLUSION

      We affirm in appeal Nos. 12-1075 and 12-1270. We dismiss appeal

No. 12-1244 as moot. We deny the government’s motion to dismiss, and we deny

Smith’s motion for leave to proceed in forma pauperis on appeal.

                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




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