United States v. Burkins

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 5, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-6360
v. (W.D. Oklahoma)
PETER BURKINS, (D.C. No. 95-CR-64-T)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, 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.
Proceeding pro se, Peter Burkins appeals the district court’s dismissal of
the Motion to Modify Sentence he brought pursuant to 18 U.S.C. § 3582(c)(2). In
*
This order and judgment is not binding precedent, except under the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.
his motion, Burkins also purported to challenge his sentence pursuant to 18
U.S.C. § 3553(a). In 1995, Burkins was indicted in a multi-count indictment for
various drug and drug-related crimes. A jury found him guilty of all counts.
Burkins filed an appeal in this court, challenging his convictions and arguing the
district court erred when it enhanced his sentence pursuant to U.S.S.G. § 3B1.1(a)
after finding he was an organizer or leader of a criminal activity involving five or
more persons. We reversed Burkins’ 18 U.S.C. § 924(c) conviction but affirmed
the remainder of the judgment. United States v. Burkins, No. 95-6435, 1996 WL
576011 (10th Cir. Oct. 8, 1996).
Burkins filed a 28 U.S.C. § 2255 habeas motion in October 1997. The
motion was denied and this court dismissed Burkins’ appeal for lack of
jurisdiction. Burkins thereafter filed two applications for leave to file a
successive § 2255 motion; both applications were denied by this court. On
September 7, 2004, Burkins filed the motion which is the subject of this appeal.
The district court denied Burkins’ motion, concluding that Burkins was not
entitled to relief pursuant to 18 U.S.C. § 3582(c)(2) because his sentencing range
was not lowered by the Sentencing Commission after he was sentenced.
Burkins filed the instant appeal, challenging the district court’s rejection of
his § 3582(c)(2) argument and re-asserting claims based on Blakely v.
Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738-2-
(2005). 1 We have reviewed the record, the appellate briefs, and the applicable
law and conclude the dismissal of Burkins’ § 3582(c)(2) claim was proper.
Accordingly, the district court’s order dismissing Burkins motion is affirmed for
substantially the reasons stated in the district court’s order dated October 27,
2004.
We construe the Booker claim raised in Burkins’ appellate brief as an
application to file a second or successive habeas petition. Because the Supreme
Court has not held that the rule announced in Booker is retroactive to cases on
collateral review for purposes of granting a second or successive § 2255 motion,
Burkins has not made a prima facie showing that satisfies the requirements of
§ 2255(2). See United States v. Bellamy, 411 F.3d 1182, 1186-8 (10th Cir. 2005);
United States v. Leonard, 383 F.3d 1146, 1147-48 (10th Cir. 2004). Accordingly,
Burkins’ implied application for leave to file a successive petition is denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
1
Burkins’ motion to proceed in forma pauperis on appeal is granted.
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