United States v. Lebeau ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 19, 2009
TENTH CIRCUIT
__________________________ Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-5078
(N.D. Okla.)
ROBERT DEWAYNE LEBEAU, (D.Ct. No. 4:07-CR-00004-HDC-1)
Defendant - Appellant.
____________________________
ORDER AND JUDGMENT *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
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. The case is therefore
ordered submitted without oral argument.
Robert D. LeBeau appeals from an 18 U.S.C. § 3582(c)(2) resentencing for
a crack cocaine offense. Because the issue he raises has been recently resolved
contrary to his position, we affirm.
*
This order and judgment is not binding precedent, except under the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.
I. BACKGROUND
In July 2008, LeBeau pled guilty to knowingly and intentionally possessing
with intent to distribute 5 grams or more of crack cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). The Presentence Investigation Report
(PSR) determined LeBeau’s offense level was 23, which included a 3-level
reduction for acceptance of responsibility. His Criminal History Category was
VI. The guideline range was 92 to 115 months imprisonment. The district court
sentenced him to 100 months.
After he was sentenced the United States Sentencing Commission amended
the drug quantity table in USSG §2D1.1(c) to reduce the sentencing disparity
between crack cocaine and powder cocaine. USSG App. C, Amend. 706 (2007).
The amendment reduced the base offense levels for crack-cocaine-related offenses
by two levels. It was made retroactive. See United States v. Rhodes, 549 F.3d
833, 835 (10th Cir. 2008).
Wishing to take advantage of the amendment’s retroactive effect, LeBeau
petitioned the court for a sentence reduction, as permitted by 18 U.S.C.
§ 3582(c)(2). Under the amended guideline his sentencing range was 77 to 96
months imprisonment. He also requested a downward variance. The court
reduced his sentence to 77 months, but refused his request for a variance. LeBeau
-2-
now claims the district court procedurally erred.
II. DISCUSSION
Our discussion is brief because the issue presented has been resolved in this
circuit. “The scope of a district court’s authority in a resentencing proceeding
under § 3582(c)(2) is a question of law that we review de novo.” Rhodes, 549
F.3d at 837. A district court is without authority to grant a variance from the
amended crack cocaine guidelines. Id. at 841. Since the court had no authority to
vary from the guidelines, an explanation for its refusal to do so is unnecessary.
LeBeau relies on Kimbrough v. United States, which recognized that in an
original sentencing the sentencing guidelines relevant to cocaine offenses must be
applied in an advisory manner subject to the particular circumstances of each
case. 128 S.Ct. 558, 574-76 (2007). LeBeau asserts the district court misstated
the law of Kimbrough and failed to apply the guidelines in an advisory fashion in
his resentencing. We reject that argument. We need not critique the district
court’s Kimbrough analysis. But see United States v. Sharkey, 543 F.3d 1236,
1239 (10th Cir. 2008). 1 It was without authority to grant a variance at
1
We explained in United States v. Price that “even if [United States v.] Booker
[543 U.S. 220 (2005)] could be read to be an implicit lowering of defendant’s sentencing
range, § 3582(c)(2) only expressly allows a reduction where the Sentencing Commission,
not the Supreme Court, has lowered the range.” 438 F.3d 1005, 1007 (10th Cir. 2006).
Thus, “Booker does not provide a basis for a sentence reduction under § 3582(c)(2).” Id.
Like Booker, the rule in Kimbrough also originated with the Supreme Court and not the
Sentencing Commission. As a result, Kimbrough is also not a basis for relief under
§ 3582(c)(2), which permits a reduction in sentence only if consistent with Sentencing
Commission policy statements.
-3-
resentencing, whether based on Kimbrough or not.
LeBeau also argues a district court retains discretion to vary below the
amended guideline range because United States v. Booker, 543 U.S. 220 (2005),
made the sentencing guidelines advisory. This argument relies on the rationale
set forth in United States v. Hicks, 472 F.3d 1167, 1170-71 (9th Cir. 2007). We
specifically rejected this reasoning in Rhodes, because “modification proceedings
under § 3582(c)(2) are much more narrow in scope than original sentencing
proceedings” and the statute’s plain language only authorizes consideration of the
amended guidelines and applicable policy statements in sentence modification
proceedings. Rhodes, 549 F.3d at 840. The district court’s resentencing
discretion is restricted to a sentence within the modified guideline range. Id.AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
-4-