United States v. Grayson

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 10, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-8048
v. (D.C. No. 1:08-CR-00173-NDF-1)
(D. Wyo.)
ERIC GRAYSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges. **
Defendant-Appellant Eric Grayson appeals from the district court’s
dismissal with prejudice of his motion to reduce sentence based upon Amendment
750 to the Sentencing Guidelines. United States v. Grayson, 08-CR-173-F (D.
Wyo. June 6, 2014). We previously rejected a similar claim (based upon
Amendment 706) because Mr. Grayson’s 15-year sentence was “based on” a Fed.
*
This order and judgment is not binding precedent, except under the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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
R. Crim. P. 11(c)(1)(C) plea agreement rather than the Sentencing Guidelines.
United States v. Grayson, 387 F. App’x 888, 890 (10th Cir. 2010). In this appeal,
Mr. Grayson argues that we should reconsider our precedent in United States v.
Graham, 704 F.3d 1275 (10th Cir. 2013). In Graham, we construed Freeman v.
United States, 131 S. Ct. 2685 (2011) as holding that a sentence pursuant to a
Rule 11(c)(1)(C) plea agreement is “based on” the plea agreement, not the
Sentencing Guidelines, absent language using or employing a specific Guidelines
range. 704 F.3d at 1278. Accordingly, we denied the defendant’s 18 U.S.C. §
3582(c)(2) motion for a sentence reduction based on a Guideline amendment. Id.
at 1279.
Although Mr. Grayson urges us to follow a contrary interpretation, United
States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 2013), absent en banc review or
superseding law, one panel of this court cannot overrule another. Kitchen v.
Herbert, 755 F.3d 1193, 1233 (10th Cir. 2014) (Kelly, J., concurring in part and
dissenting in part). Following Graham, as we must, Mr. Grayson’s sentence is not
one “based on” the Sentencing Guidelines and therefore a sentence reduction
pursuant to Amendment 750 and 18 U.S.C. § 3582(c)(2) is unavailable.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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