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

                                TENTH CIRCUIT                      December 23, 2014

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

             Plaintiff - Appellee,                      No. 13-6243
       v.                                     (D.C. No. 5:95-CR-00064-D-1)
PETER BURKINS,                                          (W.D. Okla.)

             Defendant - Appellant.



                          ORDER AND JUDGMENT *


Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.



   In 1995, after a jury convicted Peter Burkins on 15 counts involving cocaine

base, money laundering, and firearms offenses, the trial court sentenced him

under the mandatory sentencing guidelines to life imprisonment. On appeal, he

did not challenge the district court’s adoption of the presentence report’s (“PSR”)

relevant conduct finding of 8.88 kilograms of cocaine base.

    * This order and judgment is not binding precedent, except under the doctrines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. 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.
   In 2013, Burkins filed a motion for a sentence reduction under 18 U.S.C.

§ 3582(c)(2). The district court denied his motion because, even after the

retroactive passage of Amendment 750 to the Sentencing Guidelines, Burkins’

relevant conduct of 8.88 kilograms still left him at base offense level 38. On

appeal, Burkins does not contest this ruling. Instead, he seeks to collaterally

attack his original sentence based on two theories: (1) the district court did not

make a drug quantity finding, so his eligibility for relief should turn on the

amount the grand jury charged; and (2) his sentence violates the Eighth

Amendment’s prohibition against cruel and unusual punishment.

   We conclude that the district court made a drug quantity finding, specifically

attributing 8.88 kilograms of cocaine base to Burkins as relevant conduct. From

this, the district court correctly determined that Amendment 750 did not lower his

sentencing range. In addition, we hold that we have no authority to grant relief to

Burkins on his Eighth Amendment claim. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.


                                   BACKGROUND


   In 1995, a federal grand jury indicted Burkins, charging him with multiple

cocaine base, money laundering, and firearms offenses. After trial, a jury

convicted Burkins on all counts.

                                       -2-
   Applying the 1994 Sentencing Guidelines, the Probation Office prepared a

PSR, which recommended holding Burkins accountable for 8.88 kilograms of

cocaine base. Because this drug weight exceeded 1.5 kilograms, 1 Burkins

qualified for base offense level 38—the highest base offense level under U.S.

Sentencing Guidelines Manual § 2D1.1. The PSR assessed six additional levels,

two under § 2D1.1(b)(1) for possessing a firearm, and four under § 3B1.1(a) for

serving as an organizer of criminal activity with five or more people. Based on

these calculations, the PSR arrived at a total offense level of 44.

   Burkins lodged several objections to the PSR. But of the 8.88 kilograms of

cocaine base attributed to him, he contested just 18 ounces (510.3 grams)—the

amount that he was listed as having sold to Raymond Hickman in 1992. After

hearing testimony on this disputed amount, the district court overruled Burkins’

objection, finding that “the contents of the paragraph objected to [by the

   1
     In 1995 the threshold weight of cocaine base to reach the highest base offense level
of 38 was 1.5 kilograms. U.S. Sentencing Guidelines Manual § 2D1.1(c) (1995). In 2007,
under Amendment 706 to the Sentencing Guidelines, this amount increased to 4.5
kilograms. Id. app. C, amend. 706 (Nov. 1, 2007). In 2010, under Amendment 750, the
amount was raised again, this time to 8.4 kilograms. Id. app. C, amend. 750 (Nov. 1,
2010). For sentences after November 1, 2014, under Amendment 782 to the Sentencing
Guidelines, the amount of cocaine base increased again, this time to 25.2 kilograms for
base offense level 38. Id. app. C, amend. 782 (Nov. 1, 2014). The Commission has made
the new amendment retroactive, but with the requirement that reduced sentences cannot
take effect until November 1, 2015. Id.

   For clarity, citations to the Sentencing Guidelines will include the year that the
Guidelines were effective for its cited purpose. For all citations, we note that the
Guidelines were last amended on November 1, 2014.
                                         -3-
defendant] are supported by the evidence from the trial, and, accordingly, the

objection . . . will be overruled.” R. vol. 1 at 335. The court “adopt[ed] the

factual findings and guideline application in the [PSR].” Id. at 238, 244. On

October 25, 1996, the district court sentenced Burkins to a mandatory sentence of

life imprisonment. 2

   Burkins filed a direct appeal, challenging the admission of certain co-

conspirator statements and the four offense levels imposed against him as a

leader-organizer of the offenses of conviction. United States v. Burkins, No. 95-

6435, 1996 WL 576011, at *1 (10th Cir. Oct. 8, 1996) (unpublished). Nowhere

did he challenge the district court’s finding that attributed 8.88 kilograms of

cocaine base to him. We dismissed Count 13 of his conviction related to firearms

under 18 U.S.C. § 924(c) after the government conceded error. Id. at *1–2.

   In October 1997, Burkins filed a habeas petition under 28 U.S.C. § 2255.

United States v. Burkins, 157 F. App’x 55, 55 (10th Cir. 2005) (unpublished).

After the district court denied the petition, we dismissed his appeal for lack of



   2
     In 1995 when Burkins was sentenced, the Sentencing Guidelines were mandatory.
They have since been rendered advisory. In United States v. Booker, 543 U.S. 220 (2005),
the Supreme Court found that the mandatory nature of the Sentencing Guidelines violated
the Sixth Amendment right of criminal defendants to be tried by a jury and to have every
element of their offense proven by a reasonable doubt. 543 U.S. at 243–44. To remedy
the problem, the Supreme Court rendered the Guidelines advisory by invalidating certain
provisions of the Sentencing Reform Act. Id. at 259. The Court later found the remainder
of the Guidelines constitutional. See id.
                                          -4-
jurisdiction. Id. Subsequently, we denied his two later applications to file

successive petitions under § 2255. Id.

   In September 2004, Burkins sought a sentence reduction under 18 U.S.C.

§ 3582(c)(2) based on Amendment 505, which amended the drug quantity table.

The district court denied the motion because the sentencing court had already

considered Amendment 505 at Burkins’ original sentencing. Nothing suggests

that Burkins argued in that proceeding—or any earlier proceeding—that his

relevant conduct of 8.88 kilograms of cocaine base was too high or erroneous.

   In 2007, the Sentencing Commission enacted Amendment 706, which reduced

the base offense level by two for most weights of cocaine base. 3 U.S. Sentencing

Guidelines Manual app. C, amend. 706 (Nov. 1, 2007). Among other changes,

Amendment 706 increased the amount of cocaine base needed to qualify for base

offense   level   38   from 1.5     kilograms     to   4.5   kilograms   or   more.   Id.

§ 2D1.1(c) (1994); id. app. C amend. 706 (Nov. 1, 2007). In effect, this lowered

the cocaine powder/base ratio from 100:1 to about 33:1. 4 Thus, for defendants

whose relevant conduct involved between 1.5 and 4.5 kilograms of cocaine base,

   3
      In 2008, with Congress’ acquiescence, the Commission made the base
offense level reduction retroactive through Amendment 713. U.S. Sentencing
Comm’n, Supplement to the 2007 Guidelines Manual 55–56 (2008).
    4
      Amendment 706 did not create a uniform ratio across the offense levels. Instead, the
Guidelines under Amendment 706 “advance[d] a crack/powder ratio that varie[d] (at
different offense levels) between 25 to 1 and 80 to 1.” Kimbrough v. United States, 552
U.S. 85, 106 (2007).

                                          -5-
Amendment 706 afforded relief by lowering their sentencing ranges. But Burkins’

relevant conduct involved 8.88 kilograms, so Amendment 706 afforded him no

relief.

   In 2010, after Congress enacted the Fair Sentencing Act, the Sentencing

Commission again lowered the sentencing range by enacting Amendment 750. Id.

app. C, amend. 750 (Nov. 1, 2010). The Fair Sentencing Act reduced the statutory

minimum penalty disparity between cocaine powder and cocaine base to an 18:1

ratio. 5 See Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010).

Specifically, as pertains to Burkins’ case, Amendment 750 reduced from level 38

to level 36 offenses involving between 2.8 and 8.4 kilograms of cocaine base.

U.S. Sentencing Guidelines Manual app. C, amend. 750 (Nov. 1, 2011). Offenses

involving more than 8.4 kilograms of cocaine base remained at base offense level

38. Id. § 2D1.1(c)(1) (2013). With Congress’ assent, the Sentencing Commission

applied Amendment 750 retroactively. See id. app. C, amend. 759 (Nov. 1, 2011).

   In response to Amendments 706 and 750, Burkins filed a number of motions

under § 3582(c)(2) requesting a sentence reduction. The Probation Office

recommended to the district court that it find Burkins ineligible for relief under

both Amendments because neither reduced his guideline sentencing range.

   5
    For the 10-year mandatory minimum sentence, the ratio became 5 kilograms of
powder to 280 grams of base; for the 5-year mandatory minimum sentence, 500 grams of
powder to 28 grams of base. U.S. Sentencing Guidelines Manual app. C, amend. 750
(Nov. 1, 2010).
                                         -6-
Agreeing with the Probation Office, the district court denied his motions,

concluding that he was ineligible for relief under Amendment 706 or 750 because

his “sentence was based on a quantity of cocaine base (8.88 kilograms) that

exceeds the maximum amount to which the amendments apply (8.4 kilograms).”

R. vol. 1 at 392.

   Section 3582(c)(2) does not authorize a sentence reduction unless a guideline

amendment has “the effect of lowering the defendant’s applicable guideline

range.”   U.S.      Sentencing   Guidelines   Manual   §   1B1.10(a)(2)(B)   (2013).

Accordingly, the district court denied his request for a sentence reduction on this

basis. In addition, the district court rejected Burkins’ arguments because they

were outside the scope of proceedings authorized by § 3582(c)(2). It explained

that, “to the extent that Defendant seeks relief from his sentence for reasons other

than amendments to the sentencing guidelines, the Supreme Court has held that

§ 3582(c)(2) ‘authorize[s] only a limited adjustment to an otherwise final

sentence and not a plenary resentencing hearing.’” R. vol. 1 at 392 (quoting

Dillon v. United States, 560 U.S. 817, 826 (2010)).


                                    DISCUSSION

A. The Drug Quantity Finding

   Burkins contends that the district court only made “general findings based on

the summary testimony of an agent during the original sentencing hearing [that]
                                         -7-
did not result in a determinate amount of cocaine base.” Appellant’s Rep. Br. at

3. He notes that the jury did not specifically find relevant conduct of 8.88

kilograms because the jury instruction “relieved the jury of any obligation to

determine a specific amount of drugs attributable to [Burkins].” Appellant’s Br.

at 14–15. He is referencing the verdict form, on which the jury was required

merely to check guilty or not guilty next to each count from the indictment. There

were no associated drug amounts. Thus at most, he argues, the jury’s verdict

supports a drug finding of 2.97 kilograms of cocaine base, the amount charged in

the indictment. As such, he argues his eligibility under Amendment 750 should

turn on the amounts “inferred from the jury’s verdicts of guilt on the Counts

charging specific amounts associated with specific transactions.” Appellant’s

Rep. Br. at 3. Because the total amounts identified in the indictment, and upon

which he was convicted, equal 2.97 kilograms of cocaine base, he now contends

that his proper base offense level is 36 (requiring at least 2.8 kilograms but less

than 8.4 kilograms). 6 See U.S. Sentencing Guidelines Manual § 2D1.1 (2013). We


   6
      Burkins submits that United States v. Battle, 706 F.3d 1313 (10th Cir. 2013), is
dispositive. However, Battle is not relevant. The court in Battle sentenced the defendant
on a finding of “at least” 1.5 kilograms of cocaine base. Id. at 1319. When a sentencing
court finds that the defendant had “at least” the minimum amount of cocaine base that
would place him in base offense level 38, the Battle court held that a court is not bound to
that drug quantity and “may look to its previous findings, including any portions of a PSR
adopted by the sentencing court, to make supplemental calculations . . . .” Id. Unlike in
Battle, the sentencing court in Burkins’ case made a specific finding of 8.88 kilograms.
As such, the court’s holding in Battle is not applicable to this case.
                                            -8-
agree with Burkins that the total amounts identified in the indictment are equal to

2.97 kilograms of cocaine base. 7 But for the reasons set out below, we reject his

contention that the sentencing court was constrained by that amount contained in

the indictment when determining his base offense level.

   We review de novo the scope of a district court’s authority to resentence a

defendant in a § 3582(c)(2) proceeding. United States v. Williams, 575 F.3d 1075,

1076 (10th Cir. 2009). We review a sentencing court’s determination of a drug

quantity for clear error. United States v. Zapata, 546 F.3d 1179, 1192 (10th Cir.

2008).

   Even if Burkins were correct that the district court failed to make a drug

quantity finding, he cannot raise the issue in a § 3582(c)(2) proceeding. While he

couches his argument as a request for this court merely to consider his eligibility

using the drug quantity from his indictment, in substance, he is collaterally

attacking his original sentence. The Supreme Court has held that § 3582(c)(2)

proceedings “authorize only a limited adjustment to an otherwise final sentence

and not a plenary resentencing proceeding.” Dillon, 560 U.S. at 826. “[A] district

court is authorized to modify a [d]efendant’s sentence only in specified instances

where Congress has expressly granted the court jurisdiction to do so.” United


   7
      Burkins points us to jury instruction 52 to establish the 2.97 kilograms the
indictment charged. However, we need not refer to this instruction because we agree that
the indictment indeed charged a total of 2.97 kilograms.
                                            -9-
States v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006) (alterations in original)

(emphasis in original) (quoting United States v. Green, 405 F.3d 1180, 1184

(10th Cir. 2005)) (internal quotation marks omitted). Under § 3582(c)(2), a court

may only grant a sentence reduction for a defendant whose sentencing range “has

subsequently been lowered by the Sentencing Commission . . . .” 18 U.S.C.

§ 3582(c)(2).

   Moreover, this court has held that a proceeding under § 3582(c)(2) is an

inappropriate vehicle for arguing that a sentence was incorrectly imposed. United

States v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003). These arguments

should be raised on direct appeal or in a § 2255 habeas petition. Id. Specifically,

a challenge to a district court’s drug quantity finding should be raised on direct

appeal, not in a § 3582(c)(2) proceeding. See United States v. Samuels, 488 F.

App’x 275, 277 (10th Cir. 2012) (unpublished).

   Even further, Burkins’ argument fails because the sentencing court’s adoption

of the PSR’s factual findings sufficed to attribute 8.88 kilograms of cocaine base

to Burkins. We have never limited a sentencing court’s discretion in determining

a base offense level by the drug quantities charged in an indictment. We have

held “that a sentencing court may look beyond the offense of conviction and ‘may

consider quantities of drugs not alleged in calculating a defendant’s base offense

level, provided the drugs were part of the same course of conduct or common

                                       - 10 -
scheme or plan as the offense of conviction.’” United States v. Moore, 130 F.3d

1414, 1416 (10th Cir. 1997) (quoting United States v. Roederer, 11 F.3d 973, 978

(10th Cir. 1993)); see also U.S. Sentencing Guidelines Manual § 1B1.3 cmt.

background (“Relying on the entire range of conduct, regardless of the number of

counts that are alleged or on which a conviction is obtained [is reasonable].”). 8 A

district court “may accept any undisputed portion of the presentence report as a

finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). While “‘[a] district court may not

simply adopt the PSR as its findings when the defendant disputes the report[,]’. . .

we have never held that a factually undisputed PSR [cannot] form the basis for

factual findings.” United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009)

(alteration in original) (emphasis in original) (quoting United States v. Rodriguez-

Felix, 450 F.3d 1117, 1131 (10th Cir. 2006)). If the defendant makes objections,

a court may properly adopt the PSR after considering those objections. See

United States v. Wilson, 545 F. App’x 714, 716–17 (10th Cir. 2013)

(unpublished).

   At the sentencing hearing, Burkins objected to only one drug amount in the

PSR—the 18 ounces (510.3 grams) that he sold to Hickman in 1992. While


   8
     The commentary to the Sentencing Guidelines provides the following illustrative
sentence: “[I]n a drug distribution case, quantities and types of drugs not specified in the
count of conviction are to be included in determining the offense level if they were part
of the same course of conduct or part of a common scheme or plan as the count of
conviction.” U.S. Sentencing Guidelines § 1B1.3 cmt. background (2014).
                                           - 11 -
Burkins maintains that the court never ruled on this objection, we find that the

sentencing court explicitly did so. At sentencing, the court heard testimony that

refuted Burkins’ objection. The court then overruled his objection. After the

sentencing hearing, the court adopted the PSR, including the factual finding that

Burkins was accountable for 8.88 kilograms of cocaine base.

   In sum, we hold that Burkins is not entitled to resentencing under

§ 3582(c)(2).

B. The Eighth Amendment

   Burkins also argues that “[t]he continued enforcement of a sentence contrived

in contravention of the Sixth Amendment and effectuating a repudiated

punishment formula presents an extraordinary case of grossly disproportionate

punishment that traduces the protections of the Eighth Amendment.” Appellant’s

Br. at 25–26. Because he was sentenced before United States v. Booker, 543 U.S.

220 (2005), and before the enactment of the Fair Sentencing Act, Burkins

maintains that there are “Eighth Amendment implications of a sentence that was

derived as a result of a process that both violated the Sixth Amendment and

enforced a grossly disproportionate punishment differential subsequently

acknowledged as insupportable.” Appellant’s Br. at 24–25.

   Here, Burkins fails to tie his Eighth Amendment challenge to his motion for a

sentence reduction under § 3582(c)(2)—the matter the district court heard and the

                                      - 12 -
only possible basis for this appeal. Instead, he protests that Booker has not been

given retroactive effect and consequently that “[c]ontinuing to enforce a sentence

of life imprisonment devised in derogation of the Constitution is a continuing

violation of a defendant’s Constitutional rights.” Appellant’s Br. at 21. If we do

not apply Booker, he states, then “[t]he continued enforcement of the life

sentence imposed in this case violates [his] Constitutional right not to be

subjected to cruel and unusual punishment.” Id. Even after acknowledging that

the Supreme Court has not applied Booker retroactively, 9 he impliedly asks this

court to reverse our clearly established precedent and do so.

      Before we discuss our reason for denying Burkins’ constitutional argument,

we note that we are bound by the Court’s decision in Dillon that Booker does not

apply to § 3582(c)(2) resentencing proceedings. Dillon, 560 U.S. at 828. As for

Burkins’ argument that his sentence violates the Eighth Amendment, we are

unable to reach the merits because his challenge amounts to a collateral attack on

his       sentence,   where    Burkins     seeks     relief   beyond      that    which

§ 3582(c)(2) allows. 10 See Price, 438 F.3d at 1006–07 (finding no authority to


      9
      See Dillon, 560 U.S. at 828 (reviewing an appeal from a § 3582(c)(2)
proceeding and rejecting an argument that, under Booker, the district court should
have resentenced the defendant under the advisory guidelines and adjusted his
criminal history category).
   10
      Even if Burkins had the statutory ability to challenge the constitutionality of his
sentence under § 3582(c)(2), we note that his Eighth Amendment claim would fare
poorly under existing precedent. See Harmelin v. Michigan, 501 U.S. 957, 1002–05
                                        - 13 -
consider Booker relief in a § 3582(c)(2) proceeding after noting that courts may

modify a defendant’s sentence only when Congress has expressly given

jurisdiction to do so); United States v. Smartt, 129 F.3d 539, 542–43 (10th Cir.

1997) (finding no jurisdiction in a § 3582(c)(2) appeal to consider the effect of

counsel’s failure to request safety-valve relief, as this relief should be addressed

in a § 2255 motion); United States v. Gay, 771 F.3d 681, 686–87 (10th Cir. 2014)

(finding court had no authority to hear Eighth Amendment challenge in a

§3582(c)(2) proceeding). We find nothing in the limited congressional grant of

authority to modify sentences under § 3582(c)(2) that would allow Burkins to

challenge the constitutionality of his sentence. If he wishes to challenge the

constitutionality of his sentence, he must do so on direct appeal or in a § 2255

petition.


                                    CONCLUSION

   In sum, the district court properly made a drug quantity finding at Burkins’

sentencing hearing, and it did not err in finding that Burkins was ineligible for a




(1991) (finding that a life sentence without parole for possession of 650 grams of cocaine
base did not violate the Eighth Amendment).
                                           - 14 -
sentence reduction under § 3582(c)(2). Accordingly, we AFFIRM the district

court’s order denying relief under § 3582(c)(2).


                                               ENTERED FOR THE COURT


                                               Gregory A. Phillips
                                               Circuit Judge




                                      - 15 -
