United States v. Williams, 10th Cir. (2010)

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,
v.
No. 09-6053
(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 courts

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This order and judgment is not binding precedent except under the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 decisions
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 reports finding that Williams was responsible for 10.16
kilograms of crack cocaine. Williamss 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 Williamss sentence.
II. Discussion
The district courts 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 courts 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 Commissions 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 defendants
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 defendants 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 courts 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 Williamss 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 courts decisions have not adequately taken into
account the Sentencing Reform Acts 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
Williamss 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 statutes 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; Williamss
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 7s
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 7s policy statements did not disturb its prior
holding that USSG 5K1.1, another policy statement, was mandatory. See id.
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 courts reasoning in reaching its conclusion. See Tsosie, 376
F.3d at 1218.
-8-
Contrary to Williamss 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 Commissionpromotes 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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United States v. Williams, 10th Cir. (2010)

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FILED

United States Court of Appeals

UNITED STATES OF AMERICA,

MYRON ANDRE WILLIAMS,

(D.C. No. 5:00-CR-00025-R-8)

ORDER AND JUDGMENT *

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

Myron Andre Williams, a federal prisoner, appeals the district courts

The Honorable Eugene E. Siler, United States Circuit Judge, Sixth

Recently, the court has addressed a number of appeals relating to

court has jurisdiction pursuant to 28 U.S.C. 1291. We AFFIRM the decision of

[T]he Sixth Amendment concerns that gave rise to the Booker

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

Contrary to Williamss suggestion, Lee, and by extension Tsosie, do not

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