United States v. Combs ( 2013 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    March 12, 2013
    TENTH CIRCUIT                   Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,                     No. 12-6197
    (D.C. No. 5:97-CR-00017-M-1)
    v.                                                   W.D. Oklahoma
    HAROLD EUGENE COMBS,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before HARTZ, ANDERSON, and MURPHY, Circuit Judges.
    After examining the briefs and the appellate record, this court 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).
    Accordingly, the case is ordered submitted without oral argument.
    In 1997, Harold Combs was convicted on multiple counts relating to a
    conspiracy to distribute crack and powder cocaine in Oklahoma City, Oklahoma.
    United States v. Combs, No. 97-6219, 
    1998 WL 17767
    , at *1 (10th Cir. Jan. 20,
    *
    This order and judgment is not binding precedent except under the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.
    1998). At sentencing, the district court found Combs was responsible for, inter
    alia, 8.787 kilograms of cocaine base. This quantity resulted in a base offense
    level of 38. U.S.S.G. § 2D1.1(c)(1) (1997). After making additional findings
    relating to Combs’s offense conduct, the court determined his total offense level
    was forty-two, his criminal history category was I, and his guidelines range was
    360 months to life. The court imposed a 360-month sentence.
    Combs thereafter filed the instant 
    18 U.S.C. § 3582
    (c)(2) motion. Combs
    argued his sentence should be modified based on changes made to the United
    States Sentencing Guidelines by Amendment 750. See United States v. Torres-
    Aquino, 
    334 F.3d 939
    , 940 (10th Cir. 2003) (“Under 
    18 U.S.C. § 3582
    (c)(2), a
    court may reduce a previously imposed sentence if the Sentencing Commission
    has lowered the applicable sentencing range and ‘such a reduction is consistent
    with applicable policy statements issued by the Sentencing Commission.’”).
    Amendment 750 retroactively “altered the drug-quantity tables in the Guidelines,
    increasing the required quantity to be subject to each base offense level.” United
    States v. Osborn, 
    679 F.3d 1193
    , 1194 (10th Cir. 2012) (quotation omitted).
    Amendment 750 raised the minimum amount of cocaine base qualifying for
    an offense level of thirty-eight to 8.4 kilograms. See U.S.S.G. § 2D1.1(c)(1).
    Combs’s conspiracy offense involved 8.787 kilograms of cocaine base which, at
    the time of his sentencing, corresponded to a base offense level of thirty-eight.
    Because Combs’s offense conduct involved more than 8.4 kilograms of cocaine
    -2-
    base, his base offense level was not altered by Amendment 750. The district
    court concluded it did not have authority under § 3582(c)(2) to grant Combs the
    relief he sought because Amendment 750 did not have the effect of lowering his
    applicable guidelines range. See U.S.S.G. § 1B1.10(a)(2); United States v.
    McGee, 
    615 F.3d 1287
    , 1291-92 (10th Cir. 2010) (holding that a district court has
    the power to modify a sentence pursuant to § 3582(c)(2) only if a defendant’s
    original sentence is based on a sentencing range lowered by an amendment to the
    Sentencing Guidelines).
    Proceeding pro se, Combs appeals the district court’s ruling that he is not
    eligible for resentencing pursuant to § 3582(c)(2). Having reviewed the record,
    the appellate briefs, and the applicable law, we conclude the district court was
    undisputably correct in concluding it lacked authority to grant Combs’s
    § 3582(c)(2) motion. 1 Furthermore, given that the record conclusively
    demonstrates the district court lacked power under § 3582(c)(2) to reduce
    1
    Combs’s appellate arguments focus on his contention the district court’s
    original drug quantity finding is incorrect because it is based on a flawed method
    of converting powder to crack cocaine. This court has made clear, however, that
    these types of arguments amount to a collateral attack on the original sentence
    that cannot be raised in a § 3582(c)(2) proceeding. United States v. Torres-
    Aquino, 
    334 F.3d 939
    , 941 (10th Cir. 2003) (“An argument that a sentence was
    incorrectly imposed should be raised on direct appeal or in a motion to vacate, set
    aside, or correct sentence pursuant to 
    28 U.S.C. § 2255
    .”). For that reason,
    Combs’s request that this court take judicial notice of the United States
    Sentencing Commission’s Report to Congress on Cocaine and Federal Sentencing
    Policy is hereby denied.
    -3-
    Combs’s sentence, the district court did not abuse its discretion in denying
    Combs’s request for an evidentiary hearing. Accordingly, the district court’s
    disposition of Combs’s motion is affirmed.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
    -4-
    

Document Info

Docket Number: 12-6197

Judges: Hartz, Anderson, Murphy

Filed Date: 3/12/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024