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U.S. v. Sharkey

United States Court of Appeals, Tenth Circuit
Oct 7, 2008
543 F.3d 1236 (10th Cir. 2008)

Summary

holding that Amendment 706 to the Guidelines, which reduced the drug-quantity offense levels for crack cocaine, did not lower the defendant's sentence where his Guidelines range was calculated under the career-criminal provision

Summary of this case from United States v. Washington

Opinion

No. 08-3115.

October 7, 2008.

Appeal from the United States District Court for the District of Kansas, Sam A. Crow, Senior District Judge,

Patrick O. Sharkey, Pro Se.

Eric F. Melgren, United States Attorney, District of Kansas, Wichita, KS; James A. Brown, Assistant United States Attorney, District of Kansas, Topeka, KS, for Plaintiff-Appellee.

Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


Defendant-Appellant Patrick O. Sharkey entered a guilty plea to one count of distribution of cocaine base (i.e., "crack" cocaine) within one thousand feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a), and was sentenced to 188 months in prison. Although his plea agreement reserved his right to appeal certain determinations regarding sentencing, Sharkey did not appeal his sentence. Sharkey filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, but it was dismissed as untimely.

Sharkey, proceeding pro se, now contends the district court erred by denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), based on the retroactive modification to the United States Sentencing Guidelines ("Guidelines"). The Guidelines, through Amendment 706, generally adjust downward by two levels the base offense level assigned to quantities of crack cocaine. Amendment 706 took effect November 1, 2007 and was made retroactive as of March 3, 2008. See U.S.S.G. App'x C Supplement, Amendment 706 (Nov. 1, 2007) (regarding 2-level reduction); U.S.S.G. App'x C Supplement, Amendment 713 (Mar. 3, 2008) (regarding retroactivity). We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court.

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, submitted without oral argument.

I. Procedural and Factual History

This section is adapted from the district court's memorandum and order denying Sharkey's motion. See United States v. Sharkey, No. 02-40145-01-SAC, 2008 WL 1766966 (D.Kan. Apr. 15, 2008) (district court memorandum and order denying Sharkey's § 3582 motion). Sharkey does not contend the district court was in error in its recitation of the factual and procedural history of his case.

In December 2002, Sharkey was indicted on multiple drug and firearms charges.

He ultimately entered a plea of guilty to one count, distributing crack cocaine within one thousand feet of a school, in exchange for dismissal of the remaining counts. Prior to sentencing, a presentence report ("PSR") was prepared, which calculated a Guideline § 2D1.1 base offense level of 33 for the amount of cocaine base, a 2-level firearm enhancement, and a 3-level acceptance of responsibility reduction, for a total offense level of 32. With Sharkey's criminal history category of VI, the Guide-line sentencing range was 210 to 262 months' imprisonment. The PSR also recommended a finding that Sharkey was a career offender under Guideline § 4B1.1, which carried a base offense level of 34. With the 3-level reduction for acceptance of responsibility bringing his total offense level to 31, the PSR calculated a range of 188 to 235 months' imprisonment under the career offender Guideline.

At the sentencing hearing, the district court sustained Sharkey's objection to the PSR's relevant conduct findings on the amount of drugs attributable to Sharkey. That ruling resulted in the § 2D1.1 total offense level dropping from 32 to 30. Because Sharkey's total offense level was 31 under the career offender guideline, the district court applied the higher career offender guideline in accordance with Guideline § 4B1.1(b). Therefore, the district court sentenced Sharkey using the career offender Guideline range of 188 to 235 months, and Sharkey was sentenced to 188 months' imprisonment.

Sharkey reserved the right to appeal his sentence, but he did not do so. He filed a motion attacking his sentence under 28 U.S.C. § 2255, but it was dismissed as untimely. In his most recent challenge to his sentence, Sharkey filed a motion to reduce the sentence pursuant to 18 U.S.C. § 3582. Sharkey argued that the Guide-line's retroactive amendment to the crack cocaine base offense levels applied to his sentence, and that the district court should reduce his sentence on that basis. Sharkey also requested that the district court, when resentencing him based on Amendment 706, further reduce his sentence using the 18 U.S.C. § 3553(a) factors and the recent Supreme Court cases of United States v. Bookerm, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). The district court denied Sharkey's motion, and this appeal follows.

II. Legal Standards and Analysis

"We review de novo the district court's interpretation of a statute or the sentencing guidelines." United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997) (internal quotation omitted). We review for an abuse of discretion a district court's decision to deny a reduction in sentence under 18 U.S.C. § 3582(c)(2). United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996). When a "motion for [a] sentence reduction is not a direct appeal or a collateral attack under 28 U.S.C. § 2255, the viability of [the] motion depends entirely on 18 U.S.C. § 3582(c)." Smartt, 129 F.3d at 540 (internal quotation and alteration omitted).

Section 3582(c)(2) states that "in the 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 . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." (emphasis added). The Sentencing Commission's policy statement at Guideline § 1B1.10(a)(2)(B) states that a reduction "is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if' the reduction "does not have the effect of lowering the defendant's applicable guideline range." Guideline section 1B1.10(b)(1) also states that when determining whether a reduction is appropriate, the district court "shall determine the amended guide-line range that would have been applicable to the defendant if the amendment (s) to the guidelines . . . had been in effect at the time the defendant was sentenced."

At the time defendant was sentenced, had Amendment 706 been in place, it would have lowered by two levels his base offense level under § 2D1.1 to 28. See U.S.S.G. § 2D1.1(c)(1). However, Amendment 706 had no effect on the career offender guidelines in § 4B1. 1, which were the guidelines used by the district court in sentencing Sharkey. As a result, "a reduction" in Sharkey's term of imprisonment "is not consistent with" the policy statement in § 1B1.10 "and therefore is not authorized under 18 U.S.C. § 3582(c)(2)" because a two-level reduction in the offense level under Amendment 706 "does not have the effect of lowering [his] applicable guideline range." See U.S.S.G. § 1B1.10(a)(2)(B), Amendment 712 (March 3, 2008 Supp.). Because Amendment 706 has no effect on the Guideline Sharkey was sentenced under, Sharkey's motion for relief pursuant to § 3582(c)(2) was properly denied.

The district court did not resentence Sharkey and therefore had no occasion to consider the 18 U.S.C. § 3553(a) factors. In addition, we have previously rejected Sharkey's argument that the Booker line of cases provides a separate basis for relief under § 3582(c)(2). See United States v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006). Section 3582(c) allows the court to modify a sentence in only three limited circumstances, including: (1) on motion of the Director of the Bureau of Prisons if special circumstances exist; (2) if otherwise expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) if the sentencing range is subsequently lowered by the Sentencing Commission. We explained in Price that "even if Booker 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." Id. 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.

III. Conclusion

The district court correctly interpreted Amendment 706, and did not abuse its discretion when it denied Sharkey's 18 U.S.C. § 3582(c)(2) motion. AFFIRMED.


Summaries of

U.S. v. Sharkey

United States Court of Appeals, Tenth Circuit
Oct 7, 2008
543 F.3d 1236 (10th Cir. 2008)

holding that Amendment 706 to the Guidelines, which reduced the drug-quantity offense levels for crack cocaine, did not lower the defendant's sentence where his Guidelines range was calculated under the career-criminal provision

Summary of this case from United States v. Washington

holding Amendment 706 lowered sentencing range for crack cocaine and does not apply to career offenders sentenced under § 4B1.1 which was not changed by amendment

Summary of this case from United States v. Taylor

holding that the district court properly denied a § 3582(c) motion because Amendment 706 had no effect on the career offender guidelines under which defendant was sentenced

Summary of this case from United States v. Hamilton

holding a reduction in defendant's sentence as a career offender was not authorized under § 3582(c) because Amendment 706 did not lower his applicable guideline range under career-offender Guidelines

Summary of this case from United States v. Samuels

holding a reduction in defendant's sentence as a career offender was not authorized under § 3582(c) because Amendment 706 did not lower his applicable guideline range

Summary of this case from U.S. v. Harris

holding that district court did not abuse its discretion in denying § 3582(c) motion, where other guideline provisions produced a total offense level which did not alter the guideline range from that originally determined by the sentencing court

Summary of this case from U.S. v. Kirtman

holding a reduction in defendant's sentence as a career offender not authorized under § 3582(c) because Amendment 706 did not lower his applicable Guideline range under career-offender Guidelines

Summary of this case from U.S. v. Williams

holding a reduction in defendant's sentence as a career offender was not authorized under § 3582(c) because Amendment 706 did not lower his applicable Guideline range under the career-offender Guidelines

Summary of this case from U.S. v. Leroy

holding that because Amendment 706 had no effect on the career offender guidelines under § 4B1.1 on which the defendant's sentencing range was based, the defendant was not entitled to a sentence reduction

Summary of this case from U.S. v. Johnson

holding that because Amendment 706 had no effect on the career offender guidelines under § 4B1.1 on which the defendant's sentencing range was based, the defendant was not entitled to a sentence reduction

Summary of this case from U.S. v. Phillips

affirming denial of § 3582(c) motion

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affirming the denial of a § 3582(c) motion because Amendment 706 had no effect on the career offender guidelines applicable to defendant

Summary of this case from U.S. v. Burks

affirming the denial of a § 3582(c) motion because Amendment 706 had no effect on the career offender guidelines applicable to defendant

Summary of this case from U.S. v. Woodard

stating that because a U.S.S.G. amendment did not affect the defendant's Guideline range, a sentence reduction under § 3582(c) was properly denied

Summary of this case from United States v. Bishop

stating that because a guideline amendment did not affect the defendant's guideline range, a sentence reduction under § 3582(c) was properly denied

Summary of this case from United States v. Norwood

stating that because Amendment 706 would not have affected the defendant's guideline range, a sentence reduction under § 3582(c) was properly denied

Summary of this case from United States v. Delgado

providing for the same result in career-offender context

Summary of this case from United States v. Terrones-Lopez

declining to consider similar arguments where defendant was not eligible for sentencing reduction

Summary of this case from United States v. Norwood

noting that Amendment 706, which lowered base offense levels for crack cocaine offenses, had no effect on the career offender Guidelines in USSG §4B1.1

Summary of this case from United States v. Samuels

discussing the limited circumstances under which a district court may modify a defendant's sentence pursuant to § 3582(c)

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noting that "Amendment 706 had no effect on the career offender guidelines in § 4B1.1"

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noting that "Amendment 706 had no effect on the career offender guidelines in § 4B1.1"

Summary of this case from U.S. v. McDaniel

explaining that because the Amendment at issue had no effect on the guideline Sharkey was sentenced under, Sharkey's motion for relief pursuant to 18 U.S.C. § 3582(c) was properly denied, and consequently "[t]he district court did not resentence Sharkey and therefore had no occasion to consider the 18 U.S.C. § 3553 factors"

Summary of this case from U.S. v. Henriquez-Serrano

setting out history of Amendments 706 and 713 of the Sentencing Guidelines

Summary of this case from U.S. v. Williams

stating Amendment 706 had no effect on the career offender guidelines in § 4B1.1, so that a reduction in the defendant's term of imprisonment was not consistent with the policy statement in § 1B1.10

Summary of this case from U.S. v. Franklin
Case details for

U.S. v. Sharkey

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Patrick O. SHARKEY…

Court:United States Court of Appeals, Tenth Circuit

Date published: Oct 7, 2008

Citations

543 F.3d 1236 (10th Cir. 2008)

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