United States v. Pace , 650 F. App'x 940 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 15-6216
(D.C. No. 5:10-CR-00081-F-1)
v. (W.D. Okla.)
LADELL FITZGERALD PACE,
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
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A jury found Defendant Ladell Pace guilty on three counts of possession with
intent to distribute more than five grams of cocaine base (crack cocaine), see 21 U.S.C. §
841(a)(1), and two counts of using a communication facility to facilitate the acquisition
of more than five grams of cocaine base, see 21 U.S.C. § 843(b). All offenses occurred
in 2009. Under the law in effect at the time of the offenses, the mandatory-minimum
sentence was five years. See 21 U.S.C. § 841(b)(1)(B)(iii) (2009).
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
At sentencing, the district court found that Defendant was responsible for 1,531.2
grams of cocaine base. His base-offense level was therefore 34, which was increased by
two levels for maintaining a premise for the purposes of distribution of controlled
substances, leading to a total offense level of 36. With a criminal-history category of II,
his guideline sentencing range was 210 to 262 months’ imprisonment. The court
sentenced him to 228 months’ imprisonment.
Defendant later filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence
because of retroactive amendments to the sentencing guidelines. Courts lack authority to
modify a sentence unless authorized by Congress. See Dillon v. United States, 560 U.S.
817, 824 (2010); 18 U.S.C. § 3582(b). Under § 3582(c)(2) Congress has authorized a
sentence reduction “in the case of a defendant who has been sentenced to a term of
imprisonment on a sentencing range that has subsequently been lowered by the
Sentencing Commission. . . .”
Defendant cited three amendments under which he argued he was entitled to relief:
Amendment 713 (retroactively applying Amendment 706, see United States v. Rhodes,
549 F.3d 833, 835 (10th Cir. 2008); USSG app. C, amend. 713), Amendment 759
(retroactively applying Amendment 750, see Osborn, 679 F.3d at 1194; USSG app. C,
amend. 759), and Amendment 788 (retroactively applying Amendment 782, see United
States v. Kurtz, 2016 WL 1212066, at *3 (10th Cir. 2016); USSG app. C, amend. 788).
These amendments provide retroactive offense-level reductions for certain drug offenses.
Amendment 706, effective on November 1, 2007, amended the Drug Quantity Table in
USSG § 2D1.1(c), providing “a 2-level reduction in base offense levels for crack
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cocaine-related offenses.” Rhodes, 549 F.3d at 835; see USSG app. C, amend. 706.
Similarly, Amendment 750, effective on November 1, 2011, “altered the drug-quantity
tables [for crack-cocaine] 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 effectuated by the [Fair Sentencing Act of 2010].” United States v.
Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012) (internal quotation marks omitted); see
USSG app. C, amend. 750. Amendment 750’s changes made permanent the temporary
changes made on an emergency basis in Amendment 748, which had become effective a
year earlier. See USSG app. C, amend. 748 (“This amendment implements the
emergency directive in section 8 of the Fair Sentencing Act of 2010, Pub. L. 111-220.”)
and amend. 750. Amendment 782 to the Guidelines, effective November 1, 2014, also
“reduced the base offense levels assigned to drug quantities in USSG § 2D1.1, effectively
lowering the Guidelines minimum sentences for drug offenses.” Kurtz, 2016 WL
1212066, at *3 (internal quotation marks omitted); see USSG app. C, amend. 782.
The district court agreed with Defendant’s claim under Amendment 788, reduced
his base offense level to 32, reduced his sentencing range to 168 to 210 months, and
reduced his sentence to 182 months’ imprisonment. The court did not address the other
amendments cited by Defendant.
Defendant now appeals, seeking additional relief. Discerning no ground for such
relief, his attorney has filed an Anders brief and a motion for leave to withdraw. See
Anders v. California, 386 U.S. 738, 744 (1967) (defense counsel may “request
permission to withdraw” when counsel conscientiously examines a case and determines
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that an appeal would be “wholly frivolous”). Defendant filed a response asserting that he
is entitled to additional sentence reductions under Amendments 713 and 759. The United
States chose not to submit a brief. We have jurisdiction under 28 U.S.C. § 1291.
Defendant’s brief “incorporates by reference his arguments as presented to the
District Court” which included his arguments that he was entitled to relief under
Amendments 713 and 759. Resp. to Anders Br. at 1. These arguments are waived. See
Fulghum v. Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015) (“Allowing litigants to
adopt district court filings would provide an effective means of circumventing the page
limitations on briefs set forth in the appellate rules and unnecessarily complicate the task
of an appellate judge.” (internal quotation marks omitted)).
In any event, the arguments Defendant raised in the district court have no merit.
First, he argued he was entitled to relief under Amendment 713, which retroactively
applied Amendment 706’s lowered guideline ranges. But because Amendment 706 went
into effect on November 1, 2007, well before his sentencing, that Amendment did not
subsequently lower his sentencing range and the district court had no jurisdiction to
modify his sentence on that ground. See 18 U.S.C. § 3582(c) (authorizing sentence
reduction in 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” (emphasis added)); see also United States v. Curtis, 252 F. App’x 886, 887
(10th Cir. 2007) (defendant not entitled to lower sentencing range based on amendment
that was effective at time of sentencing).
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Second, Defendant argued he is entitled to relief under Amendment 759 and “the
opportunity afforded pursuant to 18 U.S.C. § 3553(a) [under the amendment] to present
his case to the Court in order that he be sentenced under the appropriate criminal history
category which makes him eligible for the ‘safety valve’ provision . . . .” R. at 47. But
under Amendment 759, which retroactively applied Amendment 750’s lowered guideline
sentencing ranges, Defendant’s base-offense level was still 34, see USSG § 2D1.1 (2011)
(assigning a base offense level of 34 to “[a]t least 840 G but less than 2.8 KG of Cocaine
Base”), yielding the same sentencing guidelines range as determined when the court had
originally sentenced him. Because his sentencing range was not lowered by the
amendment, he was not entitled to relief under Amendment 750. See 18 U.S.C. § 3582(c)
(authorizing sentence reduction in cases 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” (emphasis added)). And Defendant would not have
qualified under the safety-valve provision anyway because he had more than one
criminal-history point. See USSG § 5C1.2(a)(1) (qualifications for a defendant to receive
offense-level reduction under the safety-valve provision include that the defendant have
no more than one criminal-history point).
Finally, this court will not entertain Defendant’s various arguments in his response
to counsel’s Anders brief that he should be given the opportunity to attack his criminal-
history category. These challenges are not permitted under §3582(c)(2). See United
States v. Gay, 771 F.3d 681, 686 (10th Cir. 2014) (noting limits on issues that can be
raised under § 3582(c)(2)).
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We GRANT the motion for leave to withdraw and DISMISS the appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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