United States v. Fykes

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-1103
v.
(D.C. No. 92-CR-149-M)
(District of Colorado)
MICHAEL FYKES,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , 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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Michael Fykes appeals the district court’s denial of his motion to modify
his term of imprisonment pursuant to 18 U.S.C. § 3582(c). We affirm because his
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument for modification is foreclosed by our decision in United States v.
Kissick , 69 F.3d 1048 (10th Cir. 1995).
A jury convicted Mr. Fykes of conspiracy to distribute cocaine base and
possession with intent to distribute cocaine base in violation of 21 U.S.C. §§
841(a)(1) and 846. On December 4, 1992, the district court sentenced him to 100
months in prison. Mr. Fykes asks that we modify his sentence because the district
court did not have before it evidence that showed the cocaine base fit the
definition of crack in U.S.S.G. § 2D1.1 as amended by the Sentencing
Commission’s Amendment 487. In Kissick , we held that we would not apply
Amendment 487 retroactively because it is not listed in U.S.S.G. § 1B1.10 and is
substantive, rather than clarifying. See Kissick , 69 F.3d at 1052-53. The district
court sentenced Mr. Fykes in December 1992 and Amendment 487, which Kissick
held non-retroactive, did not become effective until almost a year later, in
November 1993. Therefore, Mr. Fykes may not rely on Amendment 487’s
definition of crack as a basis for modification of his sentence. We affirm the
denial of the motion to modify. The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
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